The Issue The issues to be resolved in this proceeding concern firstly, whether the movement (because of Respondent, Monsanto Chemical Company's (Monsanto) injection operation) of "formation fluid" containing 10,000 milligrams per liter (MG/L) or more total dissolved solids (TDS) into a portion of the lower Floridan aquifer, an underground source of drinking water, is prohibited by Rule 17-28.310(2)(b), Florida Administrative Code, or whether the Respondent, Department of Environmental Regulation (DER), may determine on a case-by-case basis whether lateral displacement of formation fluid into an underground source of drinking water (USDW) within the injection zone of such an injection operation should be prohibited or to what extent it should be conditioned. The second issue to be resolved concerns whether the the requirements of Rule 17-28.130(5)(a), Florida Administrative Code, are satisfied if a grant of the permit is made before a final corrective action plan is required to be submitted by the applicant.
Findings Of Fact Monsanto operates one of the world's largest nylon fiber manufacturing plants in Escambia County, Florida. The Monsanto plant has utilized deep underground injection wells as a method of waste water disposal since 1963. The processed waste water from the manufacturing operation flows through an elaborate network of sewers to a clay-lined holding pond on Monsanto's property. From that pond, the waste water, which is a highly dilute, slightly acidic, nonhazardous liquid, is pumped to one of three injection wells in Monsanto's underground disposal system. The Monsanto injection wells operate under pressure to deliver the processed waste water ("injected fluid") to the injection zone. DER has designated the lower Floridan aquifer, at a depth of approximately 1,400 to 1,800 feet below the surface of the ground, as Monsanto's injection zone. Monsanto's Operation Permit Number UD17-55414, dated December 2, 1982, is the permit which last authorized this activity. That permit is now proposed to be renewed. The injection wells are classified as "Class I Industrial Disposal Wells" because they "inject fluids beneath the lowermost formation containing, within one quarter mile of the well bore, an underground source of drinking water". See, Rules 17-28.130(1) (a), Florida Administrative Code. On April 1, 1982, DER adapted its rules governing the UIC. These rules were designed to enable DER to obtain authorization from the US EPA to implement the federally-mandated UIC in Florida. On December 2, 1982, the Monsanto UIC received its first operating permit from DER. On March 9, 1983, the DER obtained authorization from the EPA to implement the UIC of Florida, in lieu of the federal program, under the auspices of the EPA, in accordance with 40CFR, subsection 147.500. Upon expiration of its 1982 permit, Monsanto timely applied to DER for a renewal or reissuance of its Class I UIC permit. This resulted in an automatic authorization for it to continue operation of the injection system pending action on the permit renewal application. On June 10, 1988, DER issued a notice of intent to issue that permit. On July 11, 1988, LEAF filed the instant petition seeking an administrative hearing and requesting modifications in the proposed permit or challenging its issuance; alternatively asserting that the permit should be denied. During the pendency of the proceeding, prior to hearing, the parties agreed to stipulations of most of the facts in this matter. The parties have stipulated that the only issues in dispute involve DER's construction of the two rule provisions noted above and application of those rules to the permit application. They have stipulated that the proposed permit satisfies all requirements of applicable DER rules otherwise. Formation Fluid Movement Monsanto injects its processed waste water into an injection zone lying approximately 1,400 to 1,800 feet below the land surface. A portion of that injection zone, the lower Floridan aquifer, is a designated USDW. There is no dispute that Monsanto's injection activity causes movement of formation fluid; that is, the ambient fluid existing in the injection zone formation or strata, containing 10,000 MG/L, or greater, content of TDS into a portion of the lower Floridan aquifer, which is a USDW. That movement of formation fluid into a portion of the lower Floridan Aquifer is within the injection zone. An isopleth is an imaginary line on a map or drawing which connects points at which a given variable has a specified constant value. In this case, the isopleth of relevance is the line which connects the points in the lower Floridan aquifer at which formation fluid contains a TDS concentration of 10,000 MG/L. Concentrations at lower than 10,000 MG/L are considered to be fresh water. The location of TDS isopleths in the lower Floridan aquifer throughout the area of review at issue is not presently known. That area of review originally was proposed to be a radius of 10 miles; but at the behest of DER during the application review process, an area of review related to this renewal application of a radius of 15 miles was established and is uncontested by the parties. Available ground water monitoring data from the lower Floridan aquifer is inadequate to confirm or deny that any movement of the 10,000 MG/L TDS isopleth in that aquifer has actually occurred. Modeling performed on behalf of Monsanto and undisputed by the parties, indicates that Monsanto's injection activity does cause movement of formation fluid (as opposed to injected fluid) which contains 10,000 MG/L or greater TDS into a portion of the lower Floridan aquifer in the injection zone. DER has determined that that movement, due to the injection activity into a portion of the lower Floridan Aquifer, is not a prohibited movement. It has not been established that movement of that formation fluid which results from the injection activity violates any standard or prohibition in DER's ground water or other rules, other than the rules cited in the above-stated issue concerning prohibition of movement of fluid into a USDW, as well as that prohibition against altering, impairing or interfering with the designated use or classification of a USDW. In any event, within the area of review established, the lower Floridan Aquifer in which the injection zone is located is not presently used as a USDW because of its depth and the presence of two other existing sources of drinking water at more shallow depths. That injection zone is separated from the two more shallow drinking water aquifers by an impenetrable confining zone called the "Bucatunna Clay". That confining strata or zone comports with DER's rules regarding the separation of the injection zone, for such UIC operations, from strata or aquifers constituting sources of drinking water, by an impenetrable barrier. There is no issue raised that the injection operations, concerning wellhead and bore pressures and other mechanical aspects of the operations, for purposes of related DER rules, are causing any fractures or other endangerment to the sources of drinking water overlying the confining zone. Concern has been expressed by the Petitioner and DER, however, concerning some 13 wells in the area of review which may be improperly sealed, completed or abandoned (abandoned wells). These penetrate the sand and gravel drinking water source aquifer overlying the buccatunna confining zone. They could possibly serve as a source of migration of injected or formation fluid from the injection zone through the confining zone, vertically, into the sand and gravel aquifer. DER has determined that the movement of formation fluid caused by the injection activity into a portion of the lower Floridan Aquifer, which is a USDW, should not be prohibited. It has determined that the degree of lateral movement of formation fluid (as opposed to vertical movement of formation fluid through the confining zone) and its impact on the aquifer are not sufficient to warrant a prohibition of it and a permanent denial. Nor does DER contend that an aquifer exemption should be sought on account of this lateral movement of formation fluid (containing greater than 10,000 MG/L TDS). It has not been established that this movement of formation fluid by the injection activity violates any water quality standards or other prohibitions in DER's rules, except the alleged prohibition of any movement of fluid into a USDW. In this connection, Rule 17-28.310(2)(b), Florida Administrative Code, is not plain or unambiguous. It does not specify when or under what conditions movement of fluid into a USDW is prohibited. It does not differentiate as to the kinds of fluid, "injected", "formation fluid" or otherwise. Consequently, the rule has historically been interpreted by DER in a way in which it will make sense, as applied to a particular injection operation, including that of Monsanto. The testimony of Leslie Bell Shannon establishes that since Rule 17-28.310(2)(b), Florida Administrative Code, was adopted in 1982, DER has consistently interpreted it to provide DER with the discretion to evaluate the impact of movement of formation fluid into a USDW within the authorized injection zone (as is occurring here) on a case-by-case basis. The rule is not clear in stating what type of movement of fluid; that is, what direction, is prohibited either. In that connection, the testimony of Ms. Shannon establishes, without contradiction, that DER has historically interpreted the movement to mean vertical movement. This is because injection zones are never approved unless they exist beneath an impermeable confining strata, so that overlying aquifers or drinking water bearing strata cannot be contaminated. Because the well bores of such injection wells are the most likely sources of contamination due to defects in the casing, the well bore, and so forth, vertical movement of injected or formation fluid has always been the regulatory concern for injection operations. In effect, the injection zone is not approved in a source that will be used for drinking water and is not approved unless an adequate confining zone exists above that injection zone at a shallower depth, according to the EPA rules which pertain, as well as those of DER. Thus, DER has consistently interpreted the above rule to provide it with the discretion to evaluate the impact of movement or formation fluid into USDW's within the injection zone, on a case-by-case basis. Because of this historical manner of interpretation, DER, in applying the strictures of the rule to the instant injection activity, has determined, since the injection zone lies beneath an adequate confining zone, that even though the lower Floridan Aquifer is officially designated a USDW, that it does not actually serve as a source of drinking water for humans because of its great depth, and that the lateral movement of formation fluid within that injection zone should not be prohibited. DER's interpretation of the rule in that fashion has been shown to be reasonable and consistent with the legislative and regulatory intent expressed in Chapter 403, Florida Statutes, and the above-stated rule. The testimony and the pertinent rules of Chapter 17-28, Florida Administrative Code, establish that the integrity of the confining zone and upward migration of formation or injection fluid has been and is a matter of greatest concern and is the movement of fluid which the rule was intended to prohibit. There has been no demonstration that that interpretation of Rule 17-28.310(2)(b), Florida Administrative Code, is clearly erroneous. Corrective Action Requirement of Rule 17-28.130(5) (a) Florida Administrative Code Monsanto has identified 13 wells within the expanded 15 mile radial area of review. These 13 wells may be, although not proven to be, improperly sealed, completed or abandoned. These abandoned wells penetrate through sand and gravel aquifer, through the confining zone, and into the injection zone. LEAF does not contend that any other wells exist within the area of review, which penetrate the confining zone and into the injection zone of the lower Floridan Aquifer. The sand and gravel aquifer, which overlies and is shallower than the Buccatunna Clay confining zone, is a primary source of potable water for much of Escambia County. It is a USDW within the area of review of the Monsanto injection facility. At least one private withdrawal, domestic water well is drilled into that aquifer within one mile of the injection facility. The 13 wells have been identified by Monsanto, but the record does not reflect that they have all been physically located nor that they are all located on Monsanto's owned (or controlled) property. Rule 17-28.130(5)(a), Florida Administrative Code, requires a corrective action plan designed to prevent the migration of injection fluid or formation fluid from the injection zone through the confining zone into the aquifer used for drinking water, through improperly sealed, completed or abandoned wells. Since such wells serve as a break in the continuity of the impermeable confining zone, they are a source of endangerment to the overlying drinking water aquifer. Thus, the rule requires that a corrective action plan be established by such a permit applicant and implemented to insure that reasonable assurance is provided that such migration of fluids will not occur. Monsanto submitted a corrective action plan to DER as a part of its permit application. DER, however, issued a notice of deficiency to Monsanto requiring additional information to be provided. As a result of that deficiency in its originally submitted corrective action plan, Monsanto expanded the area of review to a 15-mile radius and revised the corrective action plan, which, thus, identified and disclosed all available information on the 13 wells in the expanded area of review. That plan concluded that no corrective action was necessary. DER determined that the corrective action plan was not adequate because it did not provide reasonable assurances that movement of fluid into a USDW, through the 13 wells, would be prevented. DER elected to issue the permit upon certain conditions, requiring that adequate evaluation of the need for corrective action and delineation of steps to make corrective action, if needed, be accomplished. DER did not require that an adequate corrective action plan be submitted as a precondition to permit issuance. DER has not determined and it has not been proven, what steps, if any, are necessary to prevent the movement of fluid into a USDW through the 13 wells in question in the area of review. It has not yet been determined if any corrective steps are actually necessary with regard to those wells. In any event, DER has taken the position that two conditions should be imposed on any grant of the permit. Those conditions known as "Special Conditions 34 and 35" would require Monsanto to perform further evaluation of the need for corrective action to prevent migration of fluid into the USDW through the wells in question. They would also require Monsanto to submit a corrective action plan for any wells which prove to require such action. Special Condition 35, sought to be imposed by DER, would require as follows: Within 30 days after submission of the corrective action evaluation plan (condition 34), the permittee shall provide the department with a corrective action plan for those wells requiring further action. The proposed corrective action plan may include, but not be limited to, monitoring near the site, replugging, or no action, and the rationale therefor. The plan shall include a schedule for the proposed corrective action, and the permittee shall implement the plan in accordance with this schedule upon department approval. If the department finds that either the proposed corrective action or the schedule for its implementation is inadequate, the department shall inform the permittee of the reasons therefor and require the permittee to revise the plan within 10 days or the department shall prescribe a plan for corrective action. DER interprets Rule 17-28.130(5) (a), Florida Administrative Code, to provide it with the authority to include Special Conditions in a permit for an existing injection well, which require the permittee to submit a revised corrective action plan within a specified time after issuance of the permit. Such permit conditions may specify the additional or different information necessary for approval of the corrective action plan and may mandate revision of the plan. DER has, thus, applied Rule 17-28.130(5) (a), Florida Administrative Code, by adding Special Conditions 34 and 35, which, taken together, "prescribe a plan of corrective action". DER's rationale is that it has continuing oversight authority to insure that the corrective action plan or its schedule of implementation, after permit issuance, is adequate. The Petitioner takes the position that the corrective action plan must be determined to be adequate before the permit can be issued. The Respondents take the position that nothing in the subject rule requires an approved or adequate corrective action plan as a precondition to permit issuance. In fact, the corrective action plan contained in conditions 34 and 35 requires an adequate evaluation of wells needing further action. Since condition 35 requires a schedule for the implementation of any corrective action, with the requirement that the schedule be in accordance with continuing DER approval, and since the condition provides that DER may require revisions of the plan within a ten-day period if the corrective action plan itself or its schedule of implementation is inadequate, it is determined that adequate control measures exist to insure that an appropriate corrective action plan, if needed, will be implemented and enforced under DER's continuing authority authorized by its rules, the statutes, and the very language of condition 35, itself. Taken together, those conditions, which will be under the continuing enforcement authority of DER, will provide reasonable assurances that the regulatory prohibition embodied in the above-quoted rule against movement of formation or injected fluid into the USDW will not be allowed to occur. Further, in this regard, Rule 17-28.130(5)(a), Florida Administrative Code, is not plain or unambiguous. It does not specify whether the corrective action plan must actually be approved in final form prior to permit issuance or whether the permit may be issued subject to mandatory conditions designed to arrive at an appropriate corrective action plan if it should prove to be needed. Because the rule does not indicate clearly that the permit must be issued only after a corrective action plan has been approved and adopted, as opposed to approval of the permit with a mandatory condition attached thereto that a corrective action plan will be arrived at, submitted, and shown to be adequate under the continuing oversight of DER, the rule must be interpreted so as to apply to a particular injection operation in a rational way in accordance with the legislative and regulatory intent underlying that rule. DER's interpretation of the rule is reasonable and appears consistent with the legislative and regulatory intent expressed in Chapter 403, Florida Statutes, and Chapter 17-28, Florida Administrative Code. It allows the corrective action plan and the course of action designed to provide reasonable assurances that the USDW will not be contaminated to be tailored to the most up-to-date information obtained concerning the physical characteristics and conditions of those wells and what, if any, corrective action, as to their status, is needed. Such a revised corrective action plan is under DER's continuing enforcement authority and contains specified time schedules to insure that all steps shown to be necessary are taken on a timely basis. Thus, DER's interpretation of the rule to allow such a submission of a corrective action plan post-permit award appears reasonable under the circumstances pertaining in this case. If Special Conditions 34 and 35 are imposed on a grant of the permit and carried out under the continuing enforcement authority of DER, a plan of corrective action will have been prescribed in accordance with the rule and reasonable assurances that migration of prohibited fluid will not occur will have been provided.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: that a Final Order be entered authorizing the issuance of an operation permit for the underground injection control system sought by Monsanto, with the conditions proposed by DER to be incorporated within that operation permit, including Special Conditions 34 and 35. DONE AND ENTERED this 5th Tallahassee, Leon County, Florida. day of March, 1990, in P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-3628 Petitioner's Proposed Findings of Fact 1-4. Accepted, due to party stipulation. Rejected, as contrary to the preponderant weight of the evidence, and as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, due to party stipulation. Accepted. Accepted. Accepted. Rejected, as contrary to the preponderant weight of the evidence, and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as contrary to the preponderant weight of the evidence, and as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not in itself materially dispositive. Accepted, but not in itself materially dispositive. Accepted, but not in itself materially dispositive. Accepted, but not in itself materially dispositive. Accepted. Accepted, but not materially dispositive, and as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as contrary to the preponderant weight of th& evidence, and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as contrary to the preponderant weight of the evidence, and as subordinate to the Hearing Officer's findings of fact on this subject matter, and as a conclusion of law and not a proposed finding of fact. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, and as contrary to the preponderant weight of the evidence. Accepted. Accepted. Accepted. Rejected, as contrary to the preponderant weight of the evidence, and as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact and conclusions of law on this subject matter. Rejected, as contrary to the preponderant weight of the evidence, and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as constituting conclusions of law and as not being in accordance with the preponderant weight of the evidence, and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as constituting conclusions of law and as not being in accordance with the preponderant weight of the evidence, and as subordinate to the Hearing Officer's findings of fact on this subject matter. 39-48. Accepted. Respondent's Proposed Findings of Fact 1-7. Accepted. 8. Rejected, as not really material in this de novo proceeding. 9-13. Accepted. 14-22. Accepted. 23-26. Rejected, as not being proposed findings of fact, but rather, conclusions of law. COPIES FURNISHED: Mr. Dale H. Twachtmann Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 B. Suzi Ruhl, Esq. David Ludder, Esq. Legal Environmental Assistance Foundation, Inc. 203 North Gadsden Street Suite 7 Tallahassee, FL 32301 Cynthia K. Christen, Esq. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 William D. Preston, Esq. Thomas M. DeRose, Esq. Hopping Boyd Green & Sams First Florida Bank Building Suite 420 123 S. Calhoun Street Tallahassee, FL 32301
The Issue The issue to be determined is whether the applicant, Kanter Real Estate, LLC (Kanter), is entitled to issuance of an Oil and Gas Drilling Permit, No. OG 1366 (the Permit).
Findings Of Fact The Parties Kanter is a foreign limited liability company registered to do business in the State of Florida. Kanter owns 20,000 acres of property in western Broward County, on which it seeks authorization for the drilling of a vertical exploratory well. The exploratory well is to be located on a five-acre site that is subject to an ERP (the Well Site). The Department is the state agency with the power and duty to regulate activities related to the management and storage of surface waters pursuant to chapter 373, Florida Statutes, and to regulate oil and gas resources, including the permitting of activities related to the exploration for and extraction of such resources, pursuant to chapter 377, Florida Statutes. Miramar is a Florida municipal corporation located in Broward County, Florida. Broward County is a political subdivision of the State of Florida with jurisdiction extending to the Kanter property and the Well Site. The Application On July 2, 2015, Kanter submitted its Application for Permit to Drill (Application) to the Department. The proposed Well Site is on land to which Kanter owns the surface rights and subsurface mineral rights. The Application contemplates the drilling of an exploratory well to a depth of approximately 11,800 feet. The Application is not for a production well. The well is to be drilled, and ancillary activities are to be performed on a fill pad of approximately five acres, surrounded by a three-foot high perimeter berm on three sides and the L67-A levee on the fourth. The pad is the subject of an ERP which, as set forth in the Preliminary Statement, is not being challenged. The pad is designed to contain the 100-year, three-day storm. The engineering design incorporates a graded area, berm, and containment with a water control structure and a gated culvert to manipulate the water if necessary. The entire pad is to be covered by a 20 mil PVC liner, is sloped to the center, and includes a steel and concrete sump for the collection of any incidental spills. The pad was designed to contain the full volume of all liquids, including drilling fluid, fuel, and lubricating oil, that are in tanks and containers on the facility. The Application includes technical reports, seismic data, and information regarding the geology and existing producing oil wells of the Upper Sunniland Formation, which Kanter filed for the purpose of demonstrating an indicated likelihood of the presence of oil at the proposed site. The third Request for Additional Information (RAI) did not request additional information regarding the indicated likelihood of the presence of oil at the proposed site. After it submitted its response to the third RAI, Kanter notified the Department of its belief that additional requests were not authorized by law. As a result, the Department completed the processing of the Application without additional RAI’s. On November 16, 2016, the Department entered its Notice of Denial of the Oil and Gas Drilling Permit. The sole basis for denial was that Kanter failed to provide information showing a balance of considerations in favor of issuance pursuant to section 377.241.1/ There was no assertion that the Application failed to meet any standard established by applicable Department rules, Florida Administrative Code Chapters 62C-25 through 62C-30. In particular, the parties included the following stipulations of fact in the Joint Prehearing Stipulation which are, for purposes of this proceeding, deemed as established: The structure intended for the drilling or production of Kanter’s exploratory oil well is not located in any of the following: a municipality; in tidal waters within 3 miles of a municipality; on an improved beach; on any submerged land within a bay, estuary, or offshore waters; within one mile seaward of the coastline of the state; within one mile seaward of the boundary of a local, state or federal park or an aquatic or wildlife preserve; on the surface of a freshwater lake, river or stream; within one mile inland from the shoreline of the Gulf of Mexico, the Atlantic Ocean or any bay or estuary; or within one mile of any freshwater lake, river or stream. The location of Kanter’s proposed oil well is not: within the corporate limits of any municipality; in the tidal waters of the state, abutting or immediately adjacent to the corporate limits of a municipality or within 3 miles of such corporate limits extending from the line of mean high tide into such waters; on any improved beach, located outside of an incorporated town or municipality, or at a location in the tidal waters of the state abutting or immediately adjacent to an improved beach, or within 3 miles of an improved beach extending from the line of mean high tide into such tidal waters; south of 26°00'00? north latitude off Florida’s west coast and south of 27°00'00? north latitude off Florida’s east coast, within the boundaries of Florida’s territorial seas as defined in 43 U.S.C. 1301; north of 26°00'00? north latitude off Florida’s west coast to the western boundary of the state bordering Alabama as set forth in s. 1, Art. II of the State Constitution; or north of 27°00'00? north latitude off Florida’s east coast to the northern boundary of the state bordering Georgia as set forth in s. 1, Art. II of the State Constitution, within the boundaries of Florida’s territorial seas as defined in 43 U.S.C. 1301. 19. The proposed oil well site does not contain Florida panther habitat and is located outside of the primary and secondary habitat zones for the Florida panther. 21. There are no recorded archaeological sites or other historic resources recorded within the area of the proposed oil well site. Kanter submitted a payment of $8,972.00 for its oil and gas permit application on June 30, 2016 pursuant to Rule 62C- 26.002(5)(c), F.A.C. Kanter’s application includes sufficient information and commitments for performance bonds and securities. DEP and Intervenors do not claim that the application lacks the information required in rule 62C-26.002, F.A.C. Kanter’s application includes an organization report that satisfies the requirements of rule 62C-26.003(3), F.A.C. Kanter’s engineering aspects of the site plan for the proposed project site, are appropriate. Kanter’s survey submitted to DEP in support of its application includes a suitable location plat which meets the minimum technical standards for land surveys. Kanter’s application includes an appropriate description of the planned well completion. DEP and Intervenors do not claim that the drilling application lacks the information required by rule 62C-26.003, F.A.C. Kanter’s Application proposes using existing levees to provide access to the proposed Kanter well site. Kanter did not propose to construct additional roads for access. Kanter’s proposed well site is located 332 feet from the L67-A levee, which serves as a roadway for trucks used to perform operations and maintenance on the levees and canals in the area. Kanter’s application does not lack any information required by DEP with respect to the location of roads, pads, or other facilities; nor does it lack any information regarding the minimization of impacts with respect to the location of roads. DEP and Intervenors do not contend that the permit should be denied based upon the proposed “spacing” of the well, or drilling unit, as that term is used in rule 62C-26.004, F.A.C. Kanter’s application includes appropriate plans for the construction of mud tanks, reserve pits, and dikes. Kanter agrees to a reasonable permit condition requiring that if water is to be transported on-site, that it will add additional tanks for the purpose of meeting water needs that would arise during the drilling process. Kanter’s design of the integrated casing, cementing, drilling mud, and blowout prevention programs is based upon sound engineering principles, and takes into account all relevant geologic and engineering data and information. Kanter’s proposed casing plan includes an additional casing string proposed in its response to DEP’s Third Request for Additional Information. This casing plan meets or exceeds the requirements of 62C-27.005, F.A.C. Kanter’s proposed casing and cementing program, as modified, meets or exceeds all applicable statutory and rule criteria.[2/] Kanter’s response and documents provided in response to DEP’s 3rd RAI satisfactorily resolved DEP’s concern regarding the risk of passage of water between different confining layers and aquifers resulting from the physical act of drilling through the layers of water and the intervening soil or earth. Kanter’s application includes a sufficient lost circulation plan. Kanter’s application is not deficient with respect to specific construction requirements which are intended to prevent subsurface discharges. Kanter’s drilling fluids plan is appropriate and is not deficient. Kanter’s blowout prevention equipment and procedures are appropriate and are not deficient. Kanter’s plans for blowout prevention are not insufficient. Kanter’s proposed oil pad is above the 100 year flood elevation and under normally expected circumstances would not be inundated by water if constructed as proposed in Kanter’s application. Kanter’s application includes a Hydrogen Sulfide Safety Plan that includes standards which are consistent with the onshore oil and gas industry standards set forth in the American Petroleum Institutes’ Recommended Practice. DEP and Intervenors do not claim any insufficiencies with respect to Kanter’s Hydrogen Sulfide Gas Contingency Plan, the sufficiency of secondary containment, its construction plans for a protective berm around the drilling site and storage tank areas of sufficient height and impermeability to prevent the escape of pad fluid, its pollution prevention plan, its safety manual, or its spill prevention and cleanup plan. DEP and Intervenors do not contend that the permitting of the well would violate section 377.242(1), F.S., regarding permits for the drilling for, exploring for, or production of oil, gas, or other petroleum products which are to be extracted from below the surface of the land only through the well hole(s). DEP and Intervenors do not contend that Kanter’s application violates the applicable rule criteria for oil and gas permitting set forth in Chapters 62C-25 through 62C-30, Florida Administrative Code. In addition to the foregoing, Kanter is not seeking or requesting authorization to perform “fracking,” and has agreed to a permit condition that would prohibit fracking. As a result of the foregoing, the parties have agreed that the Application meets or exceeds all criteria for an exploratory oil well permit under chapters 62C-25 through 62C-30. The Property Kanter owns two parcels of land totaling 20,000 acres in the area of the proposed Well Site: a northern parcel consisting of approximately 11,000 acres and a southern parcel consisting of approximately 9,000 acres. Kanter assembled its holdings through a series of acquisitions by deeds from 1975 to 1996. The Well Site is to be located within the southern parcel. On August 7, 1944, Kanter’s predecessor in title, Dallas Investment Co., acquired by tax deed all interests in a parcel within the 9,000-acre southern parcel described as “All Section 23 Township 51 South, Range 38 East, 640 Acres,” including, without reservation, the oil, gas, minerals, and phosphate. The evidence of title submitted as part of the Application indicates that a “Kanter” entity first became possessed of rights in Section 23 in 1975. By virtue of a series of transactions extending into 1996, Kanter currently holds fee title to all surface rights, and title to all mineral rights, including rights to oil, gas, and other mineral interests, within Section 23 Township 51 South, Range 38 East. The Well Site specified in the Application is within Section 23, Township 51 South, Range 38 East. Kanter’s property is encumbered by a Flowage Easement that was granted to the Central and Southern Flood Control District in 1950, and is presently held by the South Florida Water Management District (SFWMD). The Flowage Easement guarantees Kanter access to the entire easement property “for the exploration or drilling for, or the developing, producing, storing or removing of oil, gas or other . . . in accordance with sound engineering principles.” Kanter has the legal property right to locate and drill the well, and the exploratory well is consistent with Kanter’s ownership interest. The Well Site is located in a 160-acre (quarter section) portion of the 640-acre tract described above, and is within a “routine drilling unit,” which is the block of land surrounding and assigned to a well. Fla. Admin. Code R. 62C-25.002(20) and 62C-25.002(40). The Kanter property, including the Well Site, is in the historic Everglades. Before efforts to drain portions of the Everglades for development and agricultural uses, water flowed naturally in a southerly direction through land dominated by sawgrass and scattered tree islands. The tree islands were generally shaped by the direction of the water flow. Beginning as early as the late 1800s, dramatically increasing after the hurricane of 1947, and extending well into the 1960s, canals, levees, dikes, and channels were constructed to drain, impound, or reroute the historic flows. Those efforts have led to the vast system of water control structures and features that presently exist in south Florida. The Well Site, and the Kanter property as a whole, is located in Water Conservation Area (WCA)-3. WCA-3 is located in western Broward County and northwestern Miami-Dade County. It was constructed as part of the Central and Southern Florida Flood Control project authorized by Congress in 1948, and was created primarily for flood control and water supply. In the early 1960s, two levees, L67-A and L67-C, were constructed on a line running in a northeast to southwest direction. When constructed, the levees separated WCA-3 into WCA-3A to the west and WCA-3B to the southeast. The Well Site is in WCA-3A.3/ The area between L67-A and L67-C, along with a levee along the Miami Canal, is known as the “Pocket.” There is no water control in the Pocket. Although there is a structure at the south end of the Pocket, it is in disrepair, is rarely -- if ever -- operated, and may, in fact, be inoperable. The Well Site is located within the Pocket, on the southern side of L67-A. L67-A and L67-C, and their associated internal and external canals, have dramatically disrupted sheet flow, altered hydrology, and degraded the natural habitat in the Pocket. Water inputs and outputs are entirely driven by rainfall into the Pocket, and evaporation and transpiration from the Pocket. From a hydrologic perspective, the Pocket is entirely isolated from WCA-3A and WCA-3B. The Pocket is impacted by invasive species, which have overrun the native species endemic to the area and transformed the area into a monoculture of cattails. Vegetation that grows in the Pocket dies in the Pocket. Therefore, there is a layer of decomposing vegetative muck, ooze, and sediment from knee deep to waist deep in the Pocket, which is atypical of a functioning Everglades system. L67-A and L67-C, and their associated internal and external canals, impede wildlife movement, interfering with or preventing life functions of many native wildlife species. The proposed Well Site, and the surrounding Kanter property, is in a rural area where future residential or business development is highly unlikely. The property is removed from urban and industrial areas and is not known to have been used for agriculture. The Department has previously permitted oil wells within the greater Everglades, in areas of a more pristine environmental nature, character, and location than the Pocket. The Raccoon Point wellfield is located 24 miles west of the Proposed Project Site within the Big Cypress National Preserve. It is within a more natural system and has not undergone significant hydrologic changes such as the construction of canals, levees, ditches, and dikes and, therefore, continues to experience a normal hydrologic flow. Mr. Gottfried testified that at Raccoon Point, “you can see the vegetation is maintaining itself because the fact that we don’t have levees, ditches canals, dikes, impacting the area. So you have a diversity of plant life. You have tree islands still. You have the normal flow going down.” The greater weight of evidence shows that the Kanter Well Site is far less ecologically sensitive than property at Raccoon Point on which the Department has previously permitted both exploration and production wells. The Biscayne Aquifer The Biscayne Aquifer exists in almost all of Miami- Dade County, most of Broward County and a portion of the southern end of Palm Beach County. It is thickest along the coast, and thinnest and shallowest on the west side of those counties. The western limit of the Biscayne Aquifer lies beneath the Well Site. The Biscayne Aquifer is a sole-source aquifer and primary drinking water source for southeast Florida. A network of drainage canals, including the L-30, L-31, L-33, and Miami Canals, lie to the east of WCA-3B, and east of the Well Site. Those canals penetrate into the substratum and form a hydrologic buffer for wellfields east of the Well Site, including that operated by Miramar, and isolate the portions of the Biscayne Aquifer near public wellfields from potential impacts originating from areas to their west. The canals provide a “much more hydraulically available source” of water for public wellfields than water from western zones of the Biscayne Aquifer, and in that way create a buffer between areas on either side of the canals. The Pocket is not a significant recharge zone for the Biscayne Aquifer. There is a confining unit comprised of organic soils, muck, and Lake Flint Marl separating the Pocket and the Well Site from the Fort Thompson formation of the Biscayne Aquifer. There is a layer of at least five feet of confining muck under the L67-A levee in the area of the Well Site, a layer that is thicker in the Pocket. The Well Site is not within any 30-day or 120-day protection zones in place for local water supply wells. The fact that the proposed well will penetrate the Biscayne Aquifer does not create a significant risk of contamination of the Biscayne Aquifer. The drilling itself is no different than that done for municipal disposal wells that penetrate through the aquifer much closer to areas of water production than is the Well Site. The extensive casing and cementing program to be undertaken by Kanter provides greater protection for the well, and thus for the aquifer, than is required by the Department’s rules. A question as to the “possibility” that oil could get into the groundwater was answered truthfully in the affirmative “in the definition of possible.” However, given the nature of the aquifer at the Well Site, the hydrological separation of the Well Site and well from the Biscayne Aquifer, both due to the on-site confining layer and to the intervening canals, the degree of casing and cementing, and the full containment provided by the pad, the testimony of Mr. Howard that “it would be very difficult to put even a fairly small amount of risk to the likelihood that oil leaking at that site might possibly actually end up in a well at Miramar” is accepted. The Sunniland Formation The Sunniland Formation is a geologic formation which exists in a region of South Florida known as the South Florida Basin. It is characterized by alternating series of hydrocarbon-containing source rock, dolomite, and limestone of varying porosity and permeability and evaporite anhydrite or mudstone seal deposits. It has Upper Sunniland and Lower Sunniland strata, and generally exists at a depth of up to 12,000 feet below land surface (bls) in the area of the Well Site. Underlying the Sunniland Formation is a formation generally referred to as the “basement.” The basement exists at a depth of 17,000-18,000 feet bls. Oil is produced from organic rich carbonate units within the Lower Cretaceous Sunniland Formation, also known as the Dark Shale Unit of the Sunniland Formation. The oil produced in the Sunniland Formation is generally a product of prehistoric deposits of algae. Over millennia, and under the right conditions of time and pressure, organic material is converted to hydrocarbon oil. The preponderance of the evidence demonstrates that active generating source rock capable of producing hydrocarbons exists in the Sunniland Formation beneath the Kanter property. The preponderance of the evidence also indicates that the oil generated in the Sunniland Formation is at a sufficient depth that it is preserved from microbial degradation, which generally occurs in shallower reservoirs. The Upper Sunniland Formation was formed in the Cretaceous geological period, between 106 and 100 million years ago. Over that period, sea levels rose and fell dramatically, allowing colonies of rudists (a now extinct reef-building clam) and oysters to repeatedly form and die off. Over time, the colonies formed bioherms, which are reef-like buildups of shell elevated off of the base of the sea floor. Over millennia, the bioherms were exposed to conditions, including wave action and exposure to air and rainwater, that enhanced the porosity of the component rudist and oyster shell. Those “patch reefs” were subsequently buried by other materials that formed an impermeable layer over the porous rudist and oyster mounds, and allowed those mounds to become “traps” for oil migrating up from lower layers. A trap is a geological feature that consists of a porous layer overlain by an impervious layer of rock that forms a seal. A trap was described, simplistically, as an upside down bowl. Oil, being lighter than water, floats. As oil is generated in source rock, it migrates up through subterranean water until it encounters a trapping formation with the ability to create a reservoir, and with an impervious layer above the porous layer to seal the trap and prevent further migration, thus allowing the “bowl” to fill. The reservoir is the layer or structure with sufficient porosity and permeability to allow oil to accumulate with its pores. The thickness of the layer determines the volume of oil that the reservoir is capable of retaining. Although rudist mounds are generally considered to be more favorable as traps due to typically higher porosity, oyster mound traps are correlated to producing wells in the Sunniland Formation and are primary producers in the Felda field and the Seminole field. The Lower Sunniland Formation is a fractured carbonate stratum, described by Mr. Aldrich as a rubble zone. It is not a traditional structural trap. Rather, it consists of fractured and crumbling rock thought to be created by basement shear zones or deep-seated fault zones. It has the same source rock as the Upper Sunniland. There is little information on traps in the Lower Sunniland, though there are two fields that produce from that formation. A “play” is a group of prospects or potential prospects that have the same source rock, the same reservoir rock, the same trap style, and the same seal rock to hold in the hydrocarbons. The producing oil fields in the Sunniland Formation, including Raccoon Point, Sunniland, Felda, West Felda, and Lake Trafford are part of a common play known as the Sunniland Trend. The Sunniland Trend is an area of limestone of greater porosity within the Sunniland Formation, and provides a reasonable extrapolation of areas that may be conducive to oil traps. The Sunniland Trend extends generally from Manatee County on the west coast of Florida southeasterly into Broward County and the northwestern portion of Miami-Dade County on the east coast of Florida. The trend corresponds to the ancient Cretaceous shoreline where rudist and oyster bioherms formed as described above. In 2003, the “Mitchell-Tapping” report, named after the husband and wife team, identified two separate trends within the Sunniland Trend, the rudist-dominant West Felda Trend, and the more oyster-based Felda Trend. Both are oil-producing strata. The Felda Trend is more applicable to the Kanter property. Throughout the Sunniland Trend, hydrocarbon reservoirs exist within brown dolomite deposits and rudist and oyster mounds. Dolomite is a porous limestone, and is the reservoir rock found at the productive Raccoon Point oil wellfield. The evidence indicates that a brown dolomite layer of approximately 20 feet underlies the Well Site, and extends in all directions from the Well Site. A preponderance of the evidence indicates that the Kanter property, including the Well Site, is within the Sunniland Trend and its Felda Trend subset.4/ Oil produced from wells in the Sunniland Trend is typically thick, and is not under pressure. The oil does not rise through a bore hole to the surface, but must be pumped. The Raccoon Point Field, which is the closest productive and producing wellfield to the proposed Well Site, is located approximately 24 miles to the west of the Well Site, within the Sunniland Trend. Raccoon Point contains numerous well sites, of which four or five are currently producing, and has produced in the range of 20 million barrels of oil since it began operation in the late 1970s. Cumulative production of oil from proven fields in the South Florida Basin, including fields in the Sunniland Formation, is estimated to be in excess of 160 million barrels. Estimates from the U.S. Geological Service (USGS) indicate that 25 new fields capable of producing five million barrels of oil each are expected to be found within the Lower Cretaceous Shoal Reef Oil Assessment Unit, which extends into the Kanter property. Estimates of the potential reserves reach as high as an additional 200 million barrels of oil. The Dollar Bay Formation Another formation that has potential for oil production is the Lower Cretaceous Dollar Bay Formation, also in the South Florida Basin. The Dollar Bay Formation exists beneath the Kanter property at a shallower depth than the Sunniland Formation, generally at a depth of 10,000 feet in the vicinity of the Well Site. Most of the Dollar Bay prospects are on the east side of the South Florida Basin. Most of the wells in the South Florida Basin are on the west side. Thus, there has not been much in the way of exploration in the Dollar Bay Formation, so there is a lack of data on traps. Dollar Bay has been identified as a known oil-bearing play by the USGS. It is a self-source play, so the source comes from the Dollar Bay Formation itself. Dollar Bay exists both as potential and mature rock. It has known areas of very high total organic content (TOC) source rock; logged reservoir in the formation; and seal rock. There have been three oil finds in the Dollar Bay formation, with at least one commercial production well. Kanter will have to drill through the Dollar Bay Formation to get to the Upper Sunniland formation, thus allowing for the collection of information as to the production potential of the prospect. Although Dollar Bay is not generally the main “target” of the Permit, its potential is not zero. Thus, consideration of the Dollar Bay Formation as a factor in the calculation of risk/success that goes into the decision to drill an exploratory well is appropriate. Initial Exploratory Activities In 1989, Shell Western E&P, Inc. (Shell), conducted extensive seismic exploration in south Florida. Among the areas subject to seismic mapping were two lines -- one line of 36,000 feet mapped along the L67-A levee, directly alongside the Well Site, and the other of approximately 10 miles in length along the Miami Canal levee. The lines intersect on the Kanter property just north of the Well Site. The proposed exploration well is proposed to extend less than 12,000 feet deep. The seismic mapping performed by Shell was capable of producing useful data to that depth. The seismic methodology utilized by Shell produced data with a high degree of vertical and spatial resolution. Given its quality, the Shell data is very reliable. Shell did not use the seismic data generated in the 1980s, and ultimately abandoned activity in the area in favor of larger prospects, leaving the smaller fields typical of south Florida for smaller independent oil companies. The Shell seismic data was purchased by Seismic Exchange, a data brokerage company. In 2014, Kanter purchased the seismic data from Seismic Exchange for the lines that ran through its property. With the purchase, Kanter received the original field tapes, the support data, including surveyors’ notes and observer sheets which describe how the data was acquired, and the recorded data. As a result of advances in computer analysis since the data was collected, the seismic data can be more easily and accurately evaluated. It is not unusual for companies to make decisions on whether to proceed with exploration wells with two lines of seismic data. Mr. Lakin reviewed the data, and concluded that it showed a very promising area in the vicinity of the L67-A levee that was, in his opinion, sufficient to continue with permitting an exploratory oil well. Mr. Lakin described the seismic information in support of the Application as “excellent data,” an assessment that is well-supported and accepted. Mr. Pollister reviewed the two lines of seismic data and opined that the information supports a conclusion that the site is a “great prospect” for producing oil in such quantities as to warrant the exploration and extraction of such products on a commercially profitable basis. Seismic Data Analysis The seismic lines purchased by Kanter consist of line 970, which runs southwest to northeast along the L67-A levee, and a portion of line 998, which runs from northwest to southeast along the Miami Canal levee. The lines intersect at the intersection of the two levees. The data depicts, among others, the seismic reflection from the strata of the Sunniland Trend, and the seismic reflection from the basement. The depiction of the Sunniland Trend shows a discernable rise in the level of the strata, underlain by a corresponding rise in the basement strata. This rise is known as an anticline. An anticline is a location along a geologic strata at which there is an upheaval that tends to form one of the simplest oil traps that one can find using seismic data. In the South Florida Basin, anticlines are typically associated with mounded bioherms. A “closed structure” is an anticline, or structural high, with a syncline, or dip, in every direction. A closed structure, though preferable, is not required in order for there to be an effective trap. Most of the Sunniland oil fields do not have complete closure. They are, instead, stratigraphic traps, in which the formation continues to dip up and does not “roll over.” Where the rock type changes from nonporous to porous and back to nonporous, oil can become trapped in the porous portion of the interval even without “closure.” Thus, even if the “bowl” is tilted, it can still act as a trap. Complete closure is not necessary in much of the Sunniland Trend given the presence of an effective anhydrite layer to form an effective seal.5/ The seismic data of the Kanter property depicts an anticline in the Sunniland Formation that is centered beneath the Well Site at a depth in the range of 12,000 feet bls. Coming off of the anticline is a discernable syncline, or dip in the underlying rock. Applying the analogies used by various witnesses, the anticline would represent the top of the inverted bowl, and the syncline would represent the lip of the bowl. The evidence of the syncline appears in both seismic lines. The Shell seismic data also shows an anhydrite layer above the Sunniland Formation anticline. The same anticline exists at the basement level at a depth of 17,000 to 18,000 feet bls. The existence of the Sunniland formation anticline supported by the basement anticline, along with a thinning of the interval between those formations at the center point, provides support for the data reliably depicting the existence of a valid anticline. A basement-supported anticline is a key indicator of an oil trap, and is a feature commonly relied upon by geophysicists as being indicative of a structure that is favorable for oil production. The seismic data shows approximately 65 feet of total relief from the bottom to the top of the anticline structure, with 50 feet being closed on the back side. The 50 feet of closed anticline appears to extend over approximately 900 acres. There is evidence of other anticlines as one moves northeast along line 970. However, that data is not as strong as that for the structure beneath the Well Site. Though it would constitute a “lead,” that more incomplete data would generally not itself support a current recommendation to drill and, in any event, those other areas are not the subject of the permit at issue. The anticline beneath the well site is a “prospect,” which is an area with geological characteristics that are reasonably predicted to be commercially profitable. In the opinion of Mr. Lakin, the prospect at the location of the proposed Well Site has “everything that I would want to have to recommend drilling the well,” without a need for additional seismic data. His opinion is supported by a preponderance of the evidence, and is credited. Confirmation of the geology and thickness of the reservoir is the purpose of the exploratory well, with the expectation that well logs will provide such confirmation. Risk Analysis Beginning in the 1970s, the oil and gas industry began to develop a business technique for assessing the risk, i.e., the chance of failure, to apply to decisions being made on drilling exploration wells. Since the seminal work by Bob McGill, a systematic science has developed. In 1992, a manual was published with works from several authors. The 1992 manual included a methodology developed by Rose & Associates for assessing risk on prospects. The original author, Pete Rose,6/ is one of the foremost authorities on exploration risk. The Rose assessment method is a very strong mathematical methodology to fairly evaluate a prospect. The Rose method takes aspects that could contribute to finding an oil prospect, evaluates each element, and places it in its perspective. The Rose prospect analysis has been refined over the years, and is generally accepted as an industry standard. The 1992 manual also included a methodology for assessing both plays and prospects developed by David White. The following year, Mr. White published a separate manual on play and prospect analysis. The play and prospect analysis is similar to the Rose method in that both apply mathematical formulas to factors shown to be indicative of the presence of oil. Play and prospect analysis has been applied by much of the oil and gas industry, is used by the USGS in combining play and prospect analysis, and is being incorporated by Rose & Associates in its classes. The evidence is convincing that the White play and prospect analysis taught by Mr. Aldrich is a reasonable and accepted methodology capable of assessing the risk inherent in exploratory drilling. Risk analysis for plays and prospects consists of four primary factors: the trap; the reservoir; the source; and preservation and recovery. Each of the four factors has three separate characteristics. Numeric scores are assigned to each of the factors based on seismic data; published maps and materials; well data, subsurface data, and evidence from other plays and prospects; and other available information. Chance of success is calculated based on the quantity and quality of the data supporting the various factors to determine the likelihood that the prospect will produce flowable hydrocarbons. The analysis and scoring performed by Mr. Aldrich is found to be a reasonable and factually supported assessment of the risk associated with each of the prospects that exist beneath the proposed Well Site and that are the subject of the Application.7/ However, Mr. Aldrich included in his calculation an assessment of the Lower Sunniland Formation. The proposed well is to terminate at a depth of 11,800 feet bls, which is within the Upper Sunniland, but above the Lower Sunniland. Thus, although the Lower Sunniland would share the same source rock, the exploration well will not provide confirmation of the presence of oil. Therefore, it is more appropriate to perform the mathematical calculation to determine the likelihood of success without consideration of the Lower Sunniland prospect. To summarize Mr. Aldrich’s calculation, he assigned a four-percent chance of success at the Well Site for the Dollar Bay prospect. The assignment of the numeric scores for the Dollar Bay factors was reasonable and supported by the evidence. Mr. Aldrich assigned a 20-percent chance of success at the Well Site for the Upper Sunniland play. The assignment of the numeric scores for the Upper Sunniland factors was reasonable and supported by the evidence. In order to calculate the overall chance of success for the proposed Kanter exploratory well, the assessment method requires consideration of the “flip side” of the calculated chances of success, i.e., the chance of failure for each of the prospects. A four-percent chance of success for Dollar Bay means there is a 96-percent (0.96) chance of failure, i.e., that a commercial zone will not be discovered; and with a 20-percent chance of success for the Upper Sunniland, there is an 80-percent (0.80) chance of failure. Multiplying those factors, i.e., .96 x .80, results in a product of .77, or 77 percent, which is the chance that the well will be completely dry in all three zones. Thus, under the industry-accepted means of risk assessment, the 77-percent chance of failure means that there is a 23-percent chance of success, i.e., that at least one zone will be productive. A 23-percent chance that an exploratory well will be productive, though lower than the figure calculated by Mr. Aldrich,8/ is, in the field of oil exploration and production, a very high chance of success, well above the seven-percent average for prospecting wells previously permitted by the Department (as testified to by Mr. Linero) and exceeding the 10- to 15-percent chance of success that most large oil companies are looking for in order to proceed with an exploratory well drilling project (as testified to by Mr. Preston). Thus, the data for the Kanter Well Site demonstrates that there is a strong indication of a likelihood of the presence of oil at the Well Site. Commercial Profitability Commercial profitability takes into account all of the costs involved in a project, including transportation and development costs. Mr. Aldrich testified that the Kanter project would be commercially self-supporting if it produced 100,000 barrels at $50.00 per barrel. His testimony was unrebutted, and is accepted. The evidence in this case supports a finding that reserves could range from an optimistic estimate of 3 to 10 million barrels, to a very (perhaps unreasonably) conservative estimate of 200 barrels per acre over 900 acres, or 180,000 barrels. In either event, the preponderance of the evidence adduced at the hearing establishes an indicated likelihood of the presence of oil in such quantities as to warrant its exploration and extraction on a commercially profitable basis.9/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order: Approving the Application for Oil and Gas Drilling Permit No. OG 1366 with the conditions agreed upon and stipulated to by Petitioner, including a condition requiring that if water is to be transported on-site, it will add additional tanks for the purpose of meeting water needs that would arise during the drilling process, and a condition prohibiting fracking; and Approving the application for Environmental Resource Permit No. 06-0336409-001. DONE AND ENTERED this 10th day of October, 2017, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2017.
The Issue Whether DNR should establish an exceptional drilling unit or units in order to prevent waste and to avoid the . . . risks . . . from . . . an excessive number of wells, Section 377.25(2), Florida Statutes (1983)? The respondents expressly declined to raise any question as to the petitioners' standing or party status.
Findings Of Fact Petitioner W. J. Jordan and apparently all the other petitioners are owners of mineral rights under the northwest quarter of the southeast quarter of Section 13, Township 5 North, Range 29 West, Santa Rosa County, Florida. T. R. Miller owns the mineral rights under the northeast quarter of the southeast quarter of Section 13 and has leased them to Smackco. Near the center of the southeast quarter of Section 13 (the existing unit) respondent Smackco drilled the L. W. Roberts 13-4 well. NOT COMMERCIALLY PRODUCTIVE Smackco drilled the L. W. Roberts 13-4 well down to the Norphlet formation and went 49 feet further, into the Norphlet sands, before giving up its efforts to extract oil from the well. Although Smackco did find a mixture containing 28 to 30 percent hydrocarbons, the hydrostatic head precluded commercial production. If the well had come in, royalties would have inured to the benefit of petitioners, T. R. Miller, and the owners of the mineral rights under the southern half of the existing unit. Although the evidence showed that extracting oil from the L. W. Roberts 13-4 well was not commercially feasible now, it did not establish that the price of oil will never rise to the point that production would make economic sense. ADDITIONAL DATA At least three other oil wells have been drilled at the Mount Carmel Prospect in Township 5 North, Range 29 West, Santa Rosa County, Florida. In keeping with applicable statutes and rules, these wells are also located at or near the center of their respective quarter sections. Except where no governmental sections are laid out (offshore or in Spanish land grants), or where all rights affected by a change are in one ownership, DNR has adhered to the concededly arbitrary use of quarter sections as drilling units. Information gained from the wells drilled at the Mt. Carmel Prospect, and from seismic tests performed there formed the basis for uncontroverted expert opinion that a sandy mass, known to geologists as the Norphlet structure, lies almost three miles below the earth's surface; and that a pool of oil floats on salt water within the Norphlet structure, as shown in the Appendix to this order. The L. W. Roberts 13-4 is on the northern edge of the pool that the geologists hypothesize. The geophysicist's testimony that the Jay fault running northwest southeast and the smaller almost perpendicular fault running off to the northeast lie approximately as depicted in the Appendix was also uncontroverted. These faults may act as walls keeping oil on one side. The faults themselves do not hold oil. THE NEXT WELL If a new well were drilled in the center of the northwest quarter of Section 16, at a point one half mile due south of the L. W. Roberts 13-4, see Appendix, it would be near the western edge of the pool of oil, if the geologists are right. (If the geologists are wrong, drilling there might mean hitting the fault zone, as happened with the Franks Pittman well.) Drilling a quarter mile north, at the center of the first proposed drilling unit, would reduce the risk of hitting the fault, and might make commercial production of a substantial amount of oil possible. DRAINAGE LIKELY Smackco's geophysicist conceded that hydrocarbons at the L. W. Roberts 13-4 and hydrocarbons under the northwest quarter of the existing unit "very possibly" will migrate to a well in the center of the proposed drilling unit, if hydrocarbons are extracted in large quantities there. A well of the kind and to the depth contemplated can be expected to drain 160 acres more or less. The geologists cannot know precisely what the situation is three miles down on the basis of the information they have at hand. They may be mistaken now about the location of oil just as they were when they recommended earlier well sites in the Mt. Carmel Prospect.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DNR deny Smackco's petition for exceptional drilling units. DONE and ENTERED this 2nd day of March, 1984, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1984. COPIES FURNISHED: James Reddick, Esquire and Dan Stewart, Esquire Suite 5 808 Caroline Street, Southeast Milton, Florida 32570 J. Nixon Daniel, III, Esquire and Spencer Mitchem, Esquire Beggs & Lane Post Office Box 12950 Pensacola, Florida 32576-2950 Charles J. Hardee, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Elton Gissendanner, Director Department of Natural Resources Executive Suite 3900 Commonwealth Building Tallahassee, Florida 32303 * NOTE: Original Recommended Order has an appendix map which is available for review in the Division's Clerk's Office.
The Issue Whether application 23181 for a consumptive use water permit should be granted, pursuant to Chapter 383, Florida Statutes. Prior to the hearing, 16 individuals in the Wabasso, Florida, community petitioned to intervene as parties in this proceeding. By Order, dated August 26, 1976, intervention was granted. Thereafter, counsel for the Wabasso Citizens Association, a private, unincorporated association that included the 16 prior intervenors, requested that intervention include all members of the association. There being no objection to the foregoing request, intervention was granted accordingly. The public hearing in this matter included 22 exhibits and the testimony of 21 witnesses, nine of whom were members of the public. Lists of the exhibits and public witnesses are attached hereto. On January 8, 1975, the Town of Indian River Shores, Florida (hereinafter "Town"), and Lost Tree Village Corporation, Indian Rivers Shores, Florida (hereinafter "Lost Tree"), filed application 23181 for a consumptive use water permit with the Central and Southern Florida Flood Control District (hereinafter "District"). The application requested a permit for the withdrawal of 393 acre feet per year of groundwater from two wells located on a parcel of land owned by Lost Tree at Wabasso, Florida. The requested use was for irrigation of two golf courses located on land owned by Lost Tree known as John's Island, a residential community located within the Town, and as an emergency public water supply for the Town. It was proposed that the water be transported by pipeline owned by Lost Tree from Wabasso to John's Island, a distance of several miles. Although the matter was set for public hearing to be held on February 4, 1975, an unfavorable staff report of the District, dated January 30, 1975, resulted in an indefinite postponement of the hearing. A hydrogeological report was prepared for Lost Tree by a consulting firm on February 12, 1976, and submitted by the applicant to the District. A subsequent staff report of the District was prepared on July 28, 1976. Thereafter, the matter was noticed for hearing to be held August 31, 1976. Pursuant to the request of intervenors, a continuance was granted until September 29, 1976. (Exhibits 5,6,7,8,19)
Findings Of Fact The Town is a municipality that was incorporated in 1953. It is located east of the Indian River on an island and extends from the north boundary of Vero Beach for over 4 miles along the Atlantic ocean. In 1969, Lost Tree commenced developing a 3,000-acre tract of land located within the Town as a residential community. Prior to the initiation of this project, there had been very little development in the Town. In order to attract residents to John's Island, two 36-hole golf courses were constructed on the property, known as the North and South Courses, covering approximately 180 acres. At the present time, John's Island comprises over 600 residences, consisting of single and multiple family units, ranging in price from $65,000 to $500,000. The Town has a population of about 1,200, with 65 percent residing at John's Island. The present assessed value of property located in the Town is about $160,000,000 of which almost $66,000,000 is attributable to property in John's Island. The private golf club at John's Island has approximately 500 members, including about 150 from Vero Beach. The golf courses are considered to be the "heart" and "life-blood" of the community (Testimony of Ecclestone, Miller; Exhibits 5,11,12). The water supply of the Town comes from the water system of the City of Vero Beach, pursuant to contract, via a 16" water main which crosses the Indian River and ends at the northern boundary of Vero Beach. There, it is tied into a 12" water main of the Town. The Town has a one million gallon capacity underground storage tank and a 100,000 gallon overhead tank. The 16" main is the only waterline that crosses the Indian River and, in the event of a rupture, the Town would be limited to its stored supplies (Testimony of Miller, Little, Exhibits 5,17). The John's Island golf courses require irrigation of approximately 70 acres. In the past, irrigation water has been obtained from a system of shallow wells on the property, treated sewage effluent from the surrounding community, and stormwater, all of which is discharged into two ponds located on the courses. Additionally, treated potable water is obtained from the City of Vero Beach through two two-inch water meters that were installed in 1975. Prior to that time, an undisclosed amount of city water was obtained for irrigation and other purposes through city meters installed on fire hydrants in the area. The use of city water was required in order to supplement the resources available on the John's Island property. During the period May, 1975, through August, 1976, the amount of water obtained from the City of Vero Beach that was used for golf course irrigation totaled 54,057,000 gallons, an average of some 110,000 gallons per day. At the present time there is no water problem, insofar as irrigation is concerned, on the South Course which obtains irrigation water from sewage effluent and a number of shallow wells. However, test samplings over the years have shown a gradual increase in the amount of chlorides in the water and it is questionable whether such water will continue to be suitable for irrigation in the foreseeable future. Recent tests show the chloride content of the water at 450 ppm. The type of Bermuda grass on the golf courses can grow satisfactorily with water containing not more than 1,000 ppm. City water is used only on the North Course. The water obtained from the shallow wells in that area is highly saline in content. A recent water test showed a chloride content of 3,800 ppm. Additionally, immediately before an eight inch rainfall which lowered the chloride content to the foregoing figure, the greens on the North Course tested at 6,300 ppm in chloride content (Testimony of Luke, Little, Exhibits 6,7). During periods of drought, the City of Vero Beach has requested John's Island and other water users to either curtail or stop the use of city water for non-domestic purposes. Such requests have been received approximately six times during the past year. In April, 1976, the city water used for golf course irrigation at John's Island was shut off for a period of eight days as a result of a request from officials of Vero Beach. If insufficient irrigation water is not received for a period of 10 days to two weeks, it is extremely probable that a golf course would have to be replanted at an approximate cost of $60,000.00 to $80,000.00 and would require a period of six months for suitable growth. Both the Town and John's Island always cooperated fully with the requests of Vero Beach to curtail water use (Testimony of Luke, Miller, Little, Exhibit 17). At the time irrigation water sources were being explored at John's Island, a test well was drilled to a depth of 2020 feet into the Floridan aquifer underlying the property, but an inadequate quantity of water was developed. Lost Tree owns some 25 acres of land at Winter Beach, Florida, which is located west of John's Island across the Indian River. Although test wells there produced satisfactory water, it was not feasible to use this source due to prohibitions against excavation for such purposes in the Indian River. Due primarily to economic considerations of the high cost of using treated city water for golf course irrigation, and the inconvenience and possible hazards of water interruptions from that source, Lost Tree decided to supplement its resources from water withdrawn from wells to be located on a 4.869 acre tract of land it purchased in Wabasso. Although a deep well was considered at that site, state agencies advised that the Floridan aquifer was overloaded in that area to a degree of 200 percent. Accordingly, in 1973, two ninety-foot deep wells were constructed on the site approximately 500 feet apart into the underlying shallow aquifer. Pump tests showed that the chloride content was within satisfactory limits. Thereafter, Lost Tree in its own name and that of The Town, obtained necessary rights-of-way and permits for the placement of a system of pipes for transportation of water from the Wabasso wells to John's Island. These consisted of a 16" water line from the Wabasso site east over a newly constructed bridge and several existing bridges to Highway A1A where the size of the line south to John's Island was decreased to twelve inches. An agreement was entered into between Lost Tree and the Town on December 19, 1974 whereby the former agreed to supply emergency needs of the Town from water obtained from the Wabasso wells. About that same time, the pipe system was completed and the present application filed with the District (Testimony of Lloyd, Ecclestone, Exhibits 2,6,9). The area immediately surrounding Lost Tree's land in Wabasso consists primarily of residences, groves, and trailer parks. The residents of the unincorporated Wabasso area depend solely upon the shallow aquifer for their domestic water needs since there are no utility services in the area. Grove irrigation normally is accomplished by deep wells to the Floridan aquifer. After the application herein was filed in January, 1975, numerous letters of objection to the proposed withdrawal were filed with the District by residents of the Wabasso community and from local organizations. These objections, for the most part, expressed apprehension that the applicants would be withdrawing far more water from the well field than their fair share based on the size of Lost Tree's land in Wabasso. The objectors also claimed that the requested withdrawal would have a serious detrimental effect on existing users. They further protested the concept of extracting potable water from one area and transporting it to another area for irrigation use on recreational facilities. The initial Staff Report of the District on January 30, 1975, took such objections into consideration and recommended denial of the application based on the unsuitability of the well field site. It found that withdrawal of the requested water for golf course irrigation was not a reasonable and beneficial use because it greatly exceeded the water budget for the site, harmed existing legitimate users in the area by creating drawdowns of several feet which would increase the possibility of potable water supply wells running dry, harming potential future legitimate users by lowering the water table and exporting the water that they might have utilized, and because it threatened to harm such users and the resource itself by "upconing" saline water from the bottom of the aquifer into the fresh water producing zone of the aquifer. Although the report stated that there would be no objection to permitting an allocation on the order of 7.5 acre feet per year, which was the equivalent to the water crop, it was not recommended because such an allocation would do little to meet the applicant's needs for irrigation water (Exhibit 6, Composite Exhibit 20). Recognizing the need for further studies to support its application, Lost Tree hired a firm of consulting groundwater geologists and hydrologists to conduct an investigation of potential sources of irrigation water for both the John's Island and the Wabasso sites. The study confirmed prior conclusions that it was not practicable or feasible to develop the necessary irrigation water from sources available at John's Island. As to the Wabasso area, the report found that the shallow aquifer was not being fully utilized and that extraction of the proposed quantity of water would not exceed the capacity of the aquifer to provide it. It also determined that the presence of a continuous layer of impermeable clay within the Hawthorn formation effectively separates the Floridan from the shallow aquifer. No interference in the water levels of the Floridan aquifer should occur nor is it likely there would be salt water intrusion into the shallow aquifer. However, based on the formulation of a "mathematical model," it was predicted that the proposed withdrawal could adversely affect existing shallow wells within a few hundred feet of the applicant's well field by "drawdown" which could lessen the pumping ability of centrifugal pumps. Nearby existing wells, such as those located in a trailer park immediately west of Lost Tree's well field, could lose suction in pumping and thereby owners might experience delay in extracting water from the wells (Testimony of Amy, Exhibits 4, 8). Although one Wabasso resident who owns property near Lost Tree's wells has experienced a decrease in pressure in her well and poor quality water, and another nearby resident's well went dry, there is no clear evidence that Lost Tree's drilling of its two wells and consequent testing thereof caused these problems. Testimony of other Wabasso residents expressed their apprehension as to possible salt water intrusion and unavailability of water in the shallow aquifer if the requested withdrawal is approved. Other residents and public witnesses challenged the fairness of permitting one land owner to deplete local water supplies by withdrawals for transport to another area for recreational purposes (Testimony of Chesser, McPherson R., Pangburn R., Jackson, Mrs. S.B., Kale, Stout, Wintermute, Pangburn, K., Bidlingmayer, Willey, Gertzen). The District Staff Report, dated July 28, 1976, as supplemented by an addendum, dated August 30, 1976, reviewed the hydrogeological study submitted by the applicants and concluded that withdrawal of a specified amount of water from Lost Tree's Wabasso wells would represent a reasonable and beneficial use of the resource that did not appear to harm either the resource or existing users. It calculated the "crop requirement" for the golf courses on the basis of 135 acres. Testimony at the hearing established that the area required to be irrigated was only 70 acres. Consequently, the report's recommendation as to the annual water allocation for golf course irrigation was scaled down accordingly. Recommendations as to daily withdrawals were based upon the maximum billing by the City of Vero Beach for a 22-day period in January and February, 1975, plus a 20 percent allowance to provide a reasonable degree of operational flexibility. The conclusion of the staff that the withdrawal would not harm existing users is questionable in the light of the applicant's own hydrogeological study and testimony of its experts (Testimony of Winter, Exhibits 6,7,22). The Staff Report recommended that certain conditions be imposed upon any issuance of the requested permit. The following findings are made as to the reasonableness of such proposed conditions: Annual allocation of no more than 51.044 million gallons. FINDING: Reasonable. This permit shall expire 5 years after permit issuance. FINDING: Reasonable. The use may require reevaluation based upon developing needs of the area of withdrawal for higher priority uses of the resource. The total maximum monthly withdrawal from the two wells in Wabasso shall not exceed 6.931 million gallons. FINDING: Reasonable. The total daily withdrawal from the two wells in Wabasso shall not exceed 378,000 gallons. FINDING: Reasonable. Daily pumpage on a monthly basis shall be reported to the District during the following month. This data must be obtained through the use of an in line totalizing meter or meters at the well field. FINDING: Reasonable. Prior to the initiation of any pumping from the wells in Wabasso the permittee must survey all existing wells (with the owners' permission) located within 800 feet of each of these wells. Should it be determined that the permittee's pumping as recommended may adversely affect an existing well the permittee is to be held responsible for making timely corrective measures as deemed necessary at no expense to the owner, in order to preserve the water supply capability of that facility. A complete and detailed report of the survey and corrective measures taken by the permittee shall be submitted to the District. The District will then issue a notice authorizing the permittee to begin pumping as required. FINDING: Unreasonable. Although it is conceded by the applicants that adverse effects upon nearby wells may well occur, attempts to make determinations as to actual effects prior to full operation of Lost Tree's wells would only be speculative in nature. It is noteworthy in this regard that upon issuance of a temporary authorization to Lost Tree to withdraw water commencing in August, 1976, a similar precondition was imposed with a report of a survey and corrective measures taken to be submitted to the District prior to authorization to begin pumping. A cursory survey was performed by a representative of Lost Tree that consisted merely of attempting to locate surrounding wells by off-premises observation. No attempt was made to contact well owners or to obtain information as to the types of pumps on the wells. Such a survey is patently inadequate for the purposes desired by the District and it is considered impracticable and onerous to saddle the applicant with the burden of such a condition. Although withdrawals of water under the temporary permit commenced on September 18, 1976, and continued thereafter, there is no evidence that any complaints were registered by adjacent well owners as a result of the withdrawals (Testimony of Pearson, Exhibits 13, 14). For a period of 18 months after the first full week of operation in which no substantive complaints of adverse impact are received by the District, the permittee must assume full responsibility for taking the appropriate corrective to rectify any adverse impact their withdrawals create on any existing users within the area influenced by their withdrawal. Upon receiving a substantive complaint of adverse impact upon an existing user, the Executive Director of the District will issue a notice prohibiting any further withdrawals from the wells in Wabasso until corrective measures are taken by the permittee at no expense to the existing user, or until the permittee proves that their withdrawal is not the cause of the problem. The Executive Director of the District will issue a notice to resume withdrawals when the District has been satisfied that the situation is remedied. FINDING: Reasonable in part. The condition should be modified to extend the period of the permittee's responsibility for corrective action as to adverse impact on existing users to the entire life of the permit rather than for a period of only 18 months. Further, the District's prohibition of withdrawals after the receipt of a complaint is arbitrary and inconsistent with the method of administrative enforcement procedures as specified in Section 373.119(1), Florida Statutes. To help define the actual impact of the permittee's withdrawal a total of at least seven observation wells shall be installed. The observation wells shall be located between the permittee's wells and Indian River, two shall be located to the west and the remaining two shall be located either to the north or south of the permittee's wells. The locations and depths of these wells shall halve District concurrence. A continuous water level recording device shall be installed on one off these wells. FINDING: Reasonable. Although the installation and monitoring of a number of observation wells imposes a financial burden on the applicants, it is considered a proper requirement to assist in determining the impact of any withdrawal. The time for installation and specifications thereof should be set forth in any permit issued. Hydrographs from the recording device on one of the observation wells and from weekly hand measured water levels on the remaining observation wells shall be submitted to the District on a monthly basis. This data shall be submitted in the month following the period of record. All water level data shall be measured and recorded to the nearest hundredth of a foot and referenced to mean sea level. FINDING: Reasonable. By acceptance of this permit the permittee acknowledges that this permit confers no prior right to the permittee for the use of water in the amount allocated and for the purpose stated. FINDING: Unreasonable. The condition is ambiguous and involves legal aspects that are not proper for determination at this time. Any future application involving the use of the withdrawal facilities permitted herein, shall be considered as an application for a new use and it shall be reviewed accordingly. FINDING: Unreasonable. See comment in I above. All existing Floridan wells located on the applicant's properties must be abandoned in accordance with the current applicable standards of the Department of Environmental Regulation. Abandonment procedures must be carried out within 6 months of the date of issuance of this permit. FINDING: Unreasonable. The abandonment of existing Floridan wells involves subject matter not embraced within the application. An officer of the Lost Tree Village Corporation shall submit with each report required by the District a sworn and acknowledged affidavit that the report reflects the actual measurements or readings taken. FINDING: Reasonable. The Permittee shall obtain a water sample from a pumping well at the Wabasso well field site once a month, within five days of the end of the month. This sample shall be analyzed for chloride content, and the results reported to the District within 14 calendar days after collection. Should the District determine that a significant change has occurred in the chloride content of the water being withdrawn from the Wabasso well field, the District shall initiate a new review of the application. FINDING: Reasonable. Upon installation of the observation wells, a water sample shall be obtained from these wells and analyzed for the following parameters: Chloride Total Dissolved Solids Conductivity Sulfate Calcium Magnesium Sodium Bicarbonate This analysis shall be submitted to the District within 14 days after collection. During the last five days of the months of May and November of each year, during the duration of this permit, the permittee shall obtain one water sample from each of the installed observation wells. These samples shall be analyzed for Chloride content, and the results reported to the District within 14 days after collection. FINDING: Reasonable. If the permittee can demonstrate to the satisfaction of the District that the groundwater withdrawn by the south golf course well point system is no longer suitable for the irrigation of the golf course, the annual allocation shall be increased to 82.942 million gallons. FINDING: Unreasonable. Future needs should be the subject of modification of permit terms at an appropriate time, pursuant to section 373.239, F.S. An emergency authorization was issued to the applicants by the governing board of the District on August 30, 1976. This authorization contains certain special conditions including a requirement to conduct and submit a preauthorization survey and report concerning existing wells located within 800 feet of the applicant's wells. In addition, a condition of the authorization was that no withdrawals shall be made unless the City of Vero Beach had ordered the applicant to stop the use of water from its system for golf course irrigation. The evidence shows that neither of these conditions was met by the applicant, but yet withdrawals were made during the month of September, 1976 without District authorization (Testimony of Winter, Rearson, Exhibit 13). The applicant's disregard of these requirements indicates the need for a further special condition if a permit is granted, to ensure that adjacent land owners are protected in the event of adverse effects upon their water supply. To accomplish that, it is found that the following additional condition is reasonable and necessary: P. The Board shall require the applicant to furnish a bond in an appropriate amount, as authorized by Rule 16K-1.061, F.A.C. It is found that insufficient evidence has been presented to determine the merits of the request of the Town of Indian River Shores for an emergency water supply from the Wabasso wells.
Recommendation That a consumptive water use permit, with conditions as specified herein, be issued to applicant Lost Tree Village Corporation for the irrigation of its two golf courses at John's Island. DONE and ENTERED this 9th day of November, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1976. COPIES FURNISHED: John H. Wheeler, Esquire Post Office Box V West Palm Beach, Florida Sherman N. Smith, Jr., Esquire Post Office Box 1030 Vero Beach, Florida 32960 William T. McCluan, Esquire 65 East Nasa Boulevard Post Office Box 459 Melbourne, Florida 32901 =================================================================
The Issue The issue to be determined is whether Respondents, Anthony Crescenzo and Johns by John II, Inc. (collectively, Respondents), violated Florida Administrative Code Rule 64E-6.022(1)(g), (k), (l)2., and (p), and if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with the licensing and regulation of the standards for onsite sewage treatment and disposal systems (OSTDS), pursuant to chapters 381 and 489, Florida Statutes, and Florida Administrative Code Chapter 64E-6. Respondent Anthony Crescenzo is a resident of the State of Florida and holds DOH registration number SR0061541, to provide septic tank contracting services in Florida. Mr. Crescenzo owns and operates Johns by John II, Inc. (Johns by John), a Florida corporation located at 6252 Commercial Way, Weeki Wachee, Hernando County, Florida. Johns by John is authorized by the Department to provide septic tank services under Business Authorization number SA0041171. Johns by John provides OSTDS services pursuant to rules adopted by the Department and under the license, registration, and direction of Anthony Crescenzo. Winston and Dianne Wescott reside at 2245 Ring Road in Spring Hill, Florida, and have done so for approximately 19 years. Sometime in April 2014, Mr. Wescott noticed a depression and some saturated soil in his yard, near his septic tank. Mr. Wescott was concerned because of prior sink hole activity. After some telephone calls and an inspection by the insurance adjuster, Mr. Winston called Johns by John. On or about Saturday, June 7, 2014, a worker from Johns by John came to the residence and pumped out the drainfield. At that time, waste was coming out of the ground but was not backing up into the home. After the pump-out was complete, Mr. Wescott showed the technician the depressed area, and an exposed area that revealed that the outlet pipe to the septic system’s distribution box (D-box) was defective. The area had been exposed by either the insurance adjuster or the homeowner before the technician arrived. The technician telephoned Mr. Crescenzo, who advised that he would come out the following Monday or Tuesday to inspect the system and see what additional repairs were necessary. Mr. Wescott paid $205.72 for the pump-out of the drainfield. On Wednesday, June 11, 2014, Mr. Crescenzo met with Mr. Wescott to assess what repairs were necessary. When he arrived, the homeowner had already dug around the area, leaving the tank and the D-box at least partially exposed. Mr. Crescenzo advised that a new drainfield might be necessary, but did not state that it was absolutely required. He also explained that the repair would require a permit, and that they would do what they could to repair, as opposed to replace, the existing system. Mr. Crescenzo also explained that because of the need to obtain a permit, it might be four to six weeks before the job was completed. Mr. Crescenzo prepared, and Mr. Wescott signed, a Work Order/Proposed Drainfield Estimate form. Under “Job Description,” the following handwritten notation was provided: D-box collapsed down [illegible] point may have to replace entire system $2,500-$3,500. System will need to go in the front due to site conditions 4 bedroom house deposit required $1,000. The preprinted text on the form provided the following statements in bold-faced type: * NOT RESPONSIBLE FOR SPRINKLERS, WIRES, BROKEN PIPES, YARD, SOD OR DRIVEWAY DAMAGEDeposits are non-refundable. The form also provided for a 10-year warranty of any work performed. Although the language of the form is not clear, Mr. Crescenzo testified credibly that the warranty was applicable to repairs of the existing system as well as to replacement of the system. While the maximum the homeowner might have to pay is clearly indicated on the form, the costs of a repair short of replacement is not listed. Mr. Crescenzo testified that a $1,000 deposit is required for any job requiring a permit, as the permit itself is $300, and that he told the homeowner that he would not know the extent of the repair needed until he started the work. Mr. Wescott signed the estimate. Despite the language on the estimate that a new drainfield may be needed, Mr. Wescott understood that his drainfield would be replaced. While he admits signing it, he did not recall seeing the statement that deposits are non-refundable, notwithstanding that it is printed in bold type. His understanding appears to be based, in part, on a discussion between Mr. Wescott and Mr. Crescenzo about the continued vitality of the D-box. Mr. Wescott understood Mr. Crescenzo to say that the life of the septic system was approximately 19 years (the age of his home), and that if the drainfield was not replaced, the Wescotts would in all likelihood be calling him back in a matter of months to replace it because it was nearing the end of its expected life-span. He also understood Mr. Crescenzo to say that the D-box was obsolete and would not be replaced when the drainfield was replaced. Mr. Crescenzo, on the other hand, testified that he always maintained that they would try to repair the existing drainfield but may have to replace it. In the event that the system was replaced, D-boxes are no longer used and the existing one would not be replaced. Mr. Crescenzo denied stating that the life of a drainfield is 19 years, stating that drainfields do not have a standard life expectancy.1/ Mr. Crescenzo also emphasized that the work performed, whether a repair to the existing drainfield or a replacement, was subject to a 10-year warranty, thus making any statement that the company would just have to come back in a few months nonsensical. Mr. Crescenzo’s testimony is credited. Mr. Crescenzo applied for a permit on June 18, 2014, which costs $300. The permit application was to repair or replace the distribution box, not to replace the drainfield, and noted that the D-Box had collapsed. Mr. Crescenzo stated on the application that it may be possible to fix the D-Box and remove roots. The permit was issued for OSTDS repair on June 20, 2014. According to Stephen Kataro, an engineer for the septic tank program for Hernando County who approved the application and inspected the repair, the permit gave the option to replace the drainfield if necessary, based upon what was found during the repair. This approval is consistent with Department policy. On approximately July 3, 2014, Jeremiah Blake, a technician for Johns by John, went to the Wescott home to work on the septic system. Mr. Blake drove a Johns by John truck equipped with the standard equipment to install a drainfield. When he arrived at the home, the system was already uncovered. Mr. Blake discussed the repairs with Mr. Wescott, stating that he could do the drainfield or fix the D-Box. He determined that replacement of the outlet pipe leading to the D-Box addressed the problem, and that there was no need to replace the drainfield, as all drains were taking water. Mr. Blake completed the repair and used Mr. Wescott’s garden hose with a jet-spray nozzle to spray inside the D-Box and clean out the lines. There is an alternative repair method referred to as “jetting” that requires a separate permit that Respondents did not obtain. Jetting requires specialized equipment that Respondents do not own. The unrebutted testimony of both Mr. Wescott and Mr. Blake is that Mr. Blake used a simple garden hose to clear the lines. He is familiar with what the Department refers to as jetting, but has never operated jetting equipment. He uses the term “jetting” because it is an easier way to describe what he does with a simple garden hose to clear the D-Box of sand. When Mr. Blake replaced the pipe leading to the D-Box, he broke sprinkler lines in the area. Sprinkler lines are often, if not always, damaged in OSTDS repairs. Respondents had arranged the day before for a timed inspection, for which they paid an additional fee. The purpose of a timed inspection is to be able to complete the job and have it inspected as soon as it is finished. Mr. Kataro came out to the property at approximately 9:00 a.m., inspected the work performed, determined that it met permit requirements to restore function, and approved it.2/ Mr. Kataro left the site before Mr. Blake covered the system, consistent with standard practice. While Mr. Wescott was present when Mr. Kataro arrived to inspect the work, there was no testimony to indicate Mr. Wescott advised the inspector that he was unhappy with the scope of work performed. Mr. Blake had a backhoe on the premises for use in covering the area. He testified that he covered the system, including the broken sprinkler pipes, and that he always does so and then notifies the homeowner about the need to fix the sprinkler pipes. Both Mr. Blake and Mr. Wescott testified that Mr. Wescott asked Mr. Blake to remove some sod for him nearby, and paid him cash for doing so. According to Mr. Blake, Mr. Wescott seemed satisfied at this point. It seems inconceivable that Mr. Wescott would be willing to pay additional funds for Mr. Blake to remove sod if he had not covered the system he was supposed to cover and if he was unhappy with the work (or lack of work) performed, and yet not say anything to Mr. Blake about covering the completed repair. Mr. Wescott expected that since the drainfield was not replaced, he would receive some portion of the $1,000 he paid back. Had he realized that the repair would cost that much, he would have gotten estimates from other contractors. He viewed replacing the drainfield as preventative maintenance. Based on this belief, after Mr. Blake left the premises, Mr. Wescott called Mr. Crescenzo and asked about a refund. He did not complain, however, about the system not being covered. Mr. Crescenzo informed him that there would be no refund, as the work order clearly indicates that deposits are non-refundable. The Wescotts called the Johns by John office to get an itemized receipt for insurance purposes. There was some delay in receiving a receipt, so they went to the office to obtain it in person. Initially, they were given a receipt stating that the D- box had been replaced. When they questioned this and told the person working in the office that the D-box had not been replaced, she made some phone calls to verify the work performed. The office worker prepared a new receipt while speaking to someone, presumably Jeremiah Blake, on the phone. The new receipt stated, “connected tank to distribution box. Leveled D-Box to drainfield. Jetted drainfield lines.” The change in the description appears to have occurred more because the person working in the office misunderstood the scope of work performed, rather than any nefarious intent to defraud. Further, the reference to jetting was consistent with both Mr. Blake and Mr. Crescenzo’s shorthand notation for cleaning the line with the garden hose, as opposed to the alternative repair method requiring additional permitting. As noted in paragraph 16, the sprinkler lines were broken during the repairs. Mr. Wescott replaced the broken pipes, and placed bricks underneath them to hold them in place. He was still unhappy about not having a new drainfield in place, and felt that he had been defrauded. On August 4, 2014, Mr. Wescott filed a complaint with Albert Gray, the Environmental Manager at the Department. At the very end of his two-page letter, Mr. Wescott stated that the broken irrigation pipes have been repaired and the hole is still wide open with the tank cover exposed. The Department does not regulate the prices to be charged for repairs or installation of new systems: that is between the contractor and the homeowner. There is more involved to complete the job than the time that the workman is on the premises actually performing the repair. For example, in addition to the cost of the permit application, additional time is necessary to perform a site evaluation and soil test. Whether or not the drainfield must be replaced, the materials must be available to install should it be necessary, as well as the skilled workman and equipment (truck, backhoe, etc.). Further, it is clear that, had Respondents installed a new drainfield, the cost would have been much higher than what the Wescotts actually paid, not only to pay for the drainfield, but also to replace a large section of sod and a larger portion of the sprinkler system. Regardless of whether a new drainfield is installed, contractors are required to cover the OSTDS when they work on it. As a result of the Wescott’s complaint, Inspector Kataro went back out to the Wescott home to inspect the site. He found that the D-Box was lying open and exposed, with no earth covering the system. He took pictures of the area, which were admitted into evidence as Petitioner’s Exhibits J and K. The pictures show two exposed sprinkler pipes, supported at one end by bricks. One picture shows a bucket positioned over the distribution box, while the other shows the box sealed but not covered. Mr. Kataro testified that the pictures look similar to what he saw when he inspected the property after the repair was completed in July 2014. However, he could not say whether the sprinkler system pipes were broken before, or whether the bricks supporting the pipes were there previously. The testimony is clear that, after the job was inspected, Mr. Wescott made repairs to the sprinkler system that would require the area to be uncovered and Mr. Wescott acknowledged that he placed the bricks under the sprinkler pipes. Mr. Kataro recalled that Mr. Blake had a backhoe on the premises at the time of repair, but Mr. Kataro left the site before the area would have been covered. There is credible testimony that Mr. Blake covered the area and credible testimony that he did not. Other evidence presented is more consistent with a finding that the area was covered, at least minimally. The equipment for covering the area was by all accounts on site, and Mr. Blake used that equipment to remove sod for Mr. Wescott. It makes little sense for him to use the equipment to remove the sod but not use it for covering the D-Box and surrounding area. Moreover, had Mr. Blake covered the area, it would have to be uncovered to fix the sprinkler pipes. The Department did not prove by clear and convincing evidence that Mr. Blake, as an agent of Respondents, failed to cover the D-box. Respondent Crescenzo happened to be at the Department on August 14, 2014, picking up permits when he learned of the complaint from Mr. Wescott. He was very upset about the complaint and immediately wrote a response while still at the Department. In his response, he denied stating that the drain field would definitely be replaced, and emphasized that by repairing the pipe leading to the D-Box the homeowner saved a substantial amount of money, including not only the cost of installing the drain field, but the re-sodding of his yard and more substantial repair of his sprinkler system. Although clearly unhappy about the complaint, Respondent Crescenzo stated, “If the homeowner wants the system just replaced they should have said that at the time of the job. Or we could still do it if they insist for the original agreed price.” Mr. Wescott has not elected to accept Respondents’ offer. In his response, Crescenzo also referred to “jetting,” but used it in the same informal manner as Mr. Blake. His informal reference did not change the unrebutted testimony regarding the scope of work performed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 21st day of May, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 2015.
Findings Of Fact On October 15, 1982, Hal Thomas Reid Associates applied for a septic tank permit to serve a 16-room motel. On February 2, 1983, this application was amended to a 5,800 gallon septic tank to serve a 32-unit condominium and office. The lot on which this drain field is to be located is 70 feet by 100 feet. When the application was filed, the lot was inspected by the Citrus County Health Department. The elevation of the land averaged 2.5 to 2.9 feet above mean sea level. The 10-year flood plane in this area is 4.9 feet. Occasional high tides inundate this area; however, the water drains off rapidly and no one testified that water ever remained standing as long as seven consecutive days. Usually the water drains off in less than 24 hours. On March 1, 1983, an extremely high tide flooded this area and roads in the vicinity to a depth of approximately one foot. This water remained on the site less than 24 hours. The site is not located adjacent to state waters, is not an area designated as wetlands, and is without the dredge and fill permitting jurisdiction of the United States Army Corps of Engineers and the Florida Department of Environmental Regulation (Exhibits 20 and 21). By adding five feet of fill to the site, the bottom of the gravel below the drain pipes will be above the 10-year flood plane. The drain field capacity is adequate to handle the flow from 33 bathrooms of residential units. In approving this permit, the Citrus County Health Department used the 150 gallons per day discharge for residential units rather than the 100 gallons per day discharge from a motel unit. The water table at this location is two feet above mean sea level. This is determined by the elevation reached at high tides for 14 consecutive days. As a condition to Citrus County withdrawing as an intervenor in these proceedings, Applicant agrees: To revegetate and restore any alleged wetlands affected by the permit to a like or similar condition; To install three shallow draft monitor wells around the drain field towards the wetlands area adjacent to the site and towards Woods 'n Waters subdivision, establish an existing level of bacteria count prior to the activation of the septic tank, and to monitor said wells through the Citrus County Health Department on a quarterly basis; and In the event any monitor wells shall test at an unsatisfactory level, Applicant will forthwith correct this condition to the satis- faction of the Citrus County Health Department. This application meets all of the code requirements of Chapter 10D-6, Florida Administrative Code.
The Issue The issue presented is whether Respondent Seanic Corporation's application for an operating permit for a domestic wastewater treatment facility should be granted.
Findings Of Fact On January 20, 1994, Respondent Seanic Corporation submitted to Respondent Department of Environmental Protection an application to construct a wastewater treatment and disposal facility. The application requested approval to construct a facility with a design capacity of 15,000 gallons per day and to discharge its treated effluent to G-III groundwater through two Class V injection wells. Although the Department had no rules with specific depth requirements for such wells, the plans that accompanied the application contemplated wells with a total depth of 90 feet below land surface, which would be cased down to a depth of 60 feet below land surface. On February 23, 1994, the Department gave notice of its intent to issue the requested construction permit. Petitioners did not challenge the issuance of the construction permit, and the Department issued the permit on April 22, 1994, with an expiration date of five years after the issuance of the permit. On February 17, 1999, Seanic began construction of the permitted facility, including the construction of the two Class V injection wells. At the time the wells were first drilled, there were no statutes or rules regarding the appropriate depth of underground injection wells at a facility like Seanic's. Construction of the Seanic facility was completed before April 12, 1999, as reflected by the Certificate of Completion of Construction for the permitted facility. On April 21, 1999, Seanic filed with the Department its application to operate the facility. Chapter 99-395, Laws of Florida, became effective on June 18, 1999, approximately two months after the facility was constructed and the operating permit application was submitted. Section 5 of Chapter 99-395 defines the term "existing" to mean "permitted by the Department of Environmental Protection or the Department of Health as of the effective date of this act." Chapter 99-395 imposes different effluent limitations for "existing sewage facilities" than those that are applied to new facilities. For facilities that have a design capacity of less than 100,000 gallons per day, new facilities must provide treatment that will produce an effluent that contains no more, on a permitted annual basis, than the following concentrations: Biochemical Oxygen Demand (CBOD5) of 10 mg/L Suspended Solids of 10 mg/L Total Nitrogen of 10 mg/L Total Phosphorus of 1 mg/L These standards are frequently referred to as the "10-10-10-1 Standard." In accordance with Section 6(4) of Chapter 99-395, "existing sewage facilities" have until July 1, 2010, to comply with the 10-10-10-1 standard. Prior to that date, "existing sewage facilities" must meet effluent limitations of 20 mg/L for both CBOD5 and suspended solids and must monitor their effluent for concentrations of total nitrogen and total phosphorus. The Seanic facility is an "existing" facility, as that term is defined in Chapter 99-395, and, therefore, has until July 1, 2010, to comply with the 10-10-10-1 standard. Section 6(7)(a) of Chapter 99-395 requires Class V injection wells for facilities like Seanic's to be "at least 90 feet deep and cased to a minimum depth of 60 feet or to such greater cased depth and total well depth as may be required by Department of Environmental Protection rule." The Department has not promulgated any rules requiring Class V injection wells to be deeper than the depth prescribed in Chapter 99-395, Laws of Florida. As of January 26, 2000, the total depth of Seanic's injection wells measured 92 and 94.5 feet, respectively. On November 24, 1999, the Department entered its notice of intent to issue the operating permit applied for by Seanic and attached to the notice a "draft permit" with the conditions and effluent limitations that would be applied to the facility. In issuing the notice, the Department determined that Seanic had provided reasonable assurance that the facility will not discharge, emit, or cause pollution in contravention of applicable statutes or the Department's standards or rules. The draft permit included effluent limitations of 20 mg/L for both CBOD5 and suspended solids and required Seanic to monitor its effluent for total nitrogen and total phosphorus, in accordance with Chapter 99-395, Laws of Florida, and the Department's rules for existing sewage facilities. The draft permit notes that Seanic must comply with the 10-10-10-1 standard by July 1, 2010. Because Seanic's condominium development has not been completed and the wastewater treatment facility is not expected to go into operation for approximately one year, the draft permit also requires that the facility be re-inspected and re-certified immediately prior to going into operation. The Seanic facility was designed to create an effluent that is several times cleaner than required by Department rules. The facility uses an extended aeration process that is expected to reduce levels of both biological oxygen demand ("BOD") and total suspended solids ("TSS") to lower than 5 mg/L, concentrations that are 75 percent lower than the effluent limitations in the draft permit. Similar facilities in the Florida Keys have shown that they can achieve BOD and TSS concentrations of less than 5 mg/L. The Seanic facility has also been designed to provide a greater level of disinfection than required by law. While the draft permit requires only that the facility maintain a chlorine residual of 0.5 mg/L after fifteen minutes' contact time, the facility has been designed with larger chlorine contact tanks to provide a chlorine contact time of approximately one hour at anticipated flow rates. The facility operator can also increase residual chlorine concentrations. These facts, along with the reduced TSS levels at this facility, will provide considerably greater levels of disinfection than the law requires. Although the draft permit does not contain effluent limitations for total nitrogen or total phosphorus, the levels of these nutrients expected to be present in the Seanic facility's effluent are approximately 5 mg/L and 2-3 mg/L, respectively. Studies conducted on the rate of movement of phosphorus in the subsurface indicate that some of the phosphorus is rapidly immobilized through chemical reactions with the subsurface soil matrix. Specifically, studies conducted on injection wells in the Florida Keys report that 95 percent of the phosphorus is immobilized within a short time after entering the injection well. Studies conducted on the rate of movement of nitrates in the subsurface indicate that some nitrate migration is also retarded through chemical reactions with the subsurface soil matrix. More specifically, studies conducted with injection wells in the Florida Keys report that denitrification removes approximately 65 percent of the nitrates within a short time after the effluent enters the injection well. In addition to the chemical reduction of phosphorus and nitrogen levels in the groundwater, studies conducted on injection wells in the Florida Keys with a total depth of 90 feet and a cased depth of 60 feet have reported extremely high dilution rates by the time effluent injected into such wells would appear in surrounding surface waters. More specifically, studies using chemical and radioactive tracers have reported dilution rates on the range of seven orders of magnitude, i.e., 10 million times. After undergoing chemical reduction in the groundwater as well as extremely high dilution rates, the levels of nitrogen and phosphorus that would be expected to enter Captain's Cove and the adjacent canals will be infinitesimal, i.e., less than one part per trillion. Such levels would be several orders of magnitude below detection limits of currently available analytical methods. The surface waters in the artificial canals and in Captain's Cove surrounding the homes of Petitioners' members are classified by the Department as Class III waters that are predominantly marine. The permitted levels of fecal coliform bacteria in the facility's effluent (as restricted in the draft permit) are identical to the discharge limits for fecal coliform bacteria in Class III waters that are predominantly marine. The operation of Seanic's facility will not result in discharges of fecal coliform bacteria in excess of the applicable effluent limitations. Petitioners' expert witnesses agree that the facility, as designed, will comply with all of the conditions and effluent limitations in the draft permit. No Department rule or standard will be violated by this facility. The Department has not promulgated any effluent limitations or standards for viruses to be discharged to G-III groundwater or Class III surface waters that are predominantly marine. Petitioners' members use and enjoy the clear waters in their canals and in Captain's Cove. They have had the water quality tested four times a year since 1988. Captain's Cove, along with the adjacent canals, has remained a clear, oligotrophic water body with minimal algae growth. Petitioners' members fear that the introduction of viruses and other microorganisms through the facility's effluent will cause swimming in Captain's Cove and the adjacent canals to be harmful to their health. Their fear has been heightened by newspaper stories about viruses and a publicized study which erroneously claimed that Captain's Cove had high levels of harmful bacteria. Petitioner Port Antigua Property Owners Association ("PAPOA") received notice of the Department's intent to issue an operating permit to Seanic. The president discussed the permit with another resident, a microbiologist, who in turn discussed the facility with geologists and reviewed studies performed in the Florida Keys. Their serious concern over the depth of the injection wells and the possible release of viruses and bacteria harmful to the marine environment and to the public health was expressed throughout PAPOA's petition, and a copy of one of the tracer studies upon which they relied was attached to the petition. The president of Petitioner Port Antigua Townhouse Association, Inc. ("PATA"), who is also a member of PAPOA, discussed the Department's notice of intent with the president of PAPOA and the microbiologist. He also discussed the project with a member of PATA who oversees Broward County's wastewater treatment facility, which has the same effluent limitations as the Seanic facility. PATA members believed they should join with PAPOA and the Lower Matecumbe Key Association in requesting a hearing on Seanic's operating permit. PATA and others have also filed litigation in the Circuit Court against Seanic Corporation and others. That litigation is still pending. Petitioners were not able to cite any statute or rule that would be violated by the Seanic facility's discharge. They believe that since the facility is not yet operating, it should be required to adhere to the stricter effluent standards required for new facilities. They also believe that the Department should consider the harmful effects of viruses and bacteria on the marine environment and on the public health. Petitioners did not file their petitions for any improper purpose. They did not file their petitions for any frivolous purpose or to harass or to cause unnecessary delay or to increase Seanic's costs in obtaining an operating permit for its facility. They believed the language in the Department's notice of intent to issue the permit which advises substantially affected persons that they have a right to an administrative hearing and that the Department could change its preliminary agency action as an result of the administrative hearing process. They believe they are simply exercising a right that they have under the law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Seanic's application for an operating permit for its domestic wastewater treatment facility but denying Seanic's Motion for Attorney's Fees and Costs. DONE AND ENTERED this 13th day of November, 2000, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 2000. COPIES FURNISHED: Francine Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Evan Goldenberg, Esquire White & Case, LLP First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-5309 Lee R. Rohe, Esquire Post Office Box 500252 Marathon, Florida 33050 Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-0300
The Issue The issue is whether Sarasota County's application for a permit authorizing the construction of a Class V, Group 3 aquifer storage and recovery well system at the Central County Water Reclamation Facility in Sarasota, Florida, should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background On September 14, 1999, the County, through its Utilities Department, filed with the Department an application for a permit to construct a Class V, Group 3 aquifer storage and recovery (ASR) test well and monitor well system at its Central County Water Reclamation Facility, 79005 South McIntosh Road, Sarasota, Florida. The Department is charged with the responsibility of issuing such permits. On July 19, 2001, the Department issued its Notice of Intent to issue Permit No. 160882-001-UC. The permit authorizes the County to construct one test well to determine the feasibility for the storage and recovery of reclaimed water from the Suwannee Limestone of the Upper Floridan aquifer system at a depth of between 500 and 700 feet below land surface. Also, the County is authorized to construct three monitor wells, one into the target storage zone, the second into the first overlying transmissive unit, and the last into the overlying Arcadia Formation. The storage capacity of the test well is projected to be between one and two million gallons per day. On August 10, 2001, Petitioner, who is a citizen of the State of Florida, resides in Tallahassee, and is a long- time employee of Legal Environmental Assistance Foundation, Inc., filed her verified Petition for Formal Administrative Hearing (Petition) under Sections 120.569, 120.57(1), and 403.412(5), Florida Statutes. In her Petition, she generally contended that the permitting would have the effect of impairing, polluting, or otherwise injuring the water of the State because the proposed injectate (being placed in the well) will not meet primary and secondary drinking water standards, may be harmful to human health, and will violate the minimum criteria for groundwater. She also contends that the permit application was not signed by the proper signatory and that the Department failed to require the County to first drill an exploratory well (as opposed to a test well). While these allegations were not sufficient to demonstrate that Petitioner's substantial interests were affected by the proposed permitting, they were deemed sufficient (subject to proof at final hearing) to satisfy the pleading requirements of Section 403.412(5), Florida Statutes. Water Reuse Generally Water reuse is the use of reclaimed water for a beneficial purpose. Because of Florida's continuing population growth and occasional water shortage, the use of reclaimed water is an important conservation tool. Indeed, in 2002 the Legislature showed strong support for water conservation and reuse by amending Section 403.064(1), Florida Statutes, and adding language which states that "the reuse of reclaimed water is a critical component of meeting the state's existing and future water supply needs while sustaining natural systems." To this end, the County has filed its application for the purpose of using reclaimed water for such lesser uses as irrigation so that the existing high quality fresh groundwater can be used for higher and better purposes such as drinking water for the general public. The Southwest Florida Water Management District (District) has also encouraged the use of reclaimed water by providing funding for this type of program to induce utilities to move forward with reuse programs. In addition, the Department has been proactive in promoting the reuse of water throughout the State in order to conserve water resources. Aquifer Storage and Recovery Aquifer storage and recovery (ASR) is a reuse program encouraged by the Legislature, Department, and District. It involves the storage of water underground in a suitable formation, through a well, during times when water is available to put into the well, and then recovery of that stored water from the well during times when it is needed for some beneficial purpose. Put another way, an ASR operates like an underground storage tank. Water is placed into the ASR wells (by means of pumping) during recharge periods when it is raining and there is no demand for reclaimed water. When the water is pumped into the well, a stored water bubble is created by using buffer zones made of water with more salinity than the stored water. These buffer zones are designed so that there can be full recovery of the stored water. The recovery rate is generally around 100 percent. There are three ways to store reclaimed water: surface ponds, storage tanks, and ASR. The ASR storage method is the most efficient method of storing reclaimed water, and it has significant environmental, utility, and economic benefits. The ASR method has no impact on wetlands and ecosystems, and unlike pond storage (and to a lesser degree storage tanks), it does not require the use of large surface areas and is not affected by evapotranspiration and seepage. (There is typically a 60 percent loss of water due to evaporation in surface storage areas.) It also results in cost savings (up to a 50 percent reduction in capital costs) and avoidance of wetlands impacts. One of the goals of the County's Comprehensive Plan is to maximize the use of reclaimed water for irrigation purposes. Because other storage methods have proved to be inefficient, ASR is the County's preferred storage method to meet this goal. At the time of the final hearing (August 2002), there were at least fifty-six ASR systems operating outside the State of Florida (and around one hundred more in various stages of development) and eleven ASR systems successfully operating in the State, the first one having been established in 1983. At that time, there were also two ASR test programs underway in the area, including one in the Englewood Water District, a few miles to the south of the proposed project, and the Northwest Hillsborough ASR program, which is located just north of the County. Also, ASR systems are located in Manatee County and near the Peace River, which is in the same storage area being proposed here. Therefore, the County has the benefit of drawing upon twenty years of experience with this type of system. The Permit The County began an informal water reuse program in 1988, when it first used effluent disposal for irrigation purposes at a local golf course. A formal program (the Reuse Master Plan) was commenced in 1994; however, the County still lacks the storage capacity to meet the seasonal demands of its reuse customers.3 Without storage, any excess water must be discharged and lost. In order to meet the County's goal of maximizing reclaimed water use, it must be able to adequately store reclaimed water. Due to projected population growth and issues concerning management of limited resources, in 1997 the County began considering the use of ASR as a means to better manage its reclaimed water supply and demand for those facilities which serve the North County Reuse System. If all necessary permits are obtained, the County intends to use reclaimed water from its Central County wastewater facility. Currently, that effluent receives advanced tertiary treatment with deep bed filtration and high level disinfection. The proposed test well will be approximately 700 feet deep; at that depth, the injection (or storage) zone will consist of the Suwannee Limestone formation of the Upper Floridan aquifer system. The storage zone is brackish, with the water quality or salinity having about six times the acceptable degree of salinity for a drinking water source. It is anticipated that the total dissolved solids (TDS) concentration in the injection zone will be greater than 3,000 TDS. If water quality at the proposed injection zone is greater than 3,000 TDS, this fact will be revealed during the construction of the test injection well and during the various tests to be conducted during construction. (Assuming this level of TDS is found, then at that point the County would have to provide reasonable assurance that the water reclamation facility is providing full or principal treatment to the domestic waste.) The evidence establishes that there is some level of transmissivity in the confining layer overlying the proposed injection zone. That is to say, there is some small degree of connectivity between the proposed injection zone and the aquifer above it. The actual level of transmissivity will be determined based upon tests run during the construction of the first monitor well. The effluent produced from the County's water reclamation facility meets drinking water standards. If the plant is unable to produce effluent that meets or exceeds the applicable water quality standards, this issue is an operational concern which can be addressed in a permit modification authorizing operational testing. Under the Department's permit process, if the construction permit is approved, the County will construct a monitor well to obtain more site-specific information concerning such things as the geology, hydrology, and water quality at the site. (At this point, while the County has published literature sources and regional geologic information from two nearby ASR systems using the same storage area to rely upon, it has no specific data for the very small parcel where the well will be constructed.) Once the information is obtained, an engineering report is prepared and submitted to the Department. That report contains a wide array of technical data, including construction data, hydrogeologic data, formation samples, water quality samples, hydraulic data, core data, Packer data, and geophysical data. This information is then used by the Department (and a special advisory committee called the Technical Advisory Committee) to evaluate whether the site can be authorized for cycle testing and later for operational purposes. If cycle testing is appropriate, the County must then request a modification to its construction permit to authorize cycle testing of its ASR well. That modification, and any others that may be warranted by the new information, are "final agency action subject to the procedural safeguards contained in Chapter 120, F.S." Fla. Admin. Code R. 62- 528.100(2). When the test injection well is constructed and eventually placed into operation, monitor wells will be used to monitor background water in both the injection zone and in the two aquifers overlying the proposed injection zone. However, until further Department approval is obtained, no injection of reclaimed water is authorized; the permit being sought here authorizes only the construction of the well itself. Finally, Florida Administrative Code Rule 62- 528.640(1)(a) requires that the County obtain a separate operation permit after the construction permit has been issued and testing completed. Criteria and Standards for a Class V Well Florida Administrative Code Chapter 62-528 governs all injection wells defined as Class I, III, IV, or V wells. (In Class II wells, the injected fluids are used in connection with oil and natural gas production and are regulated by the Florida Geological Survey under Chapter 377, Florida Statutes.) The category of wells in which the County seeks a permit is a Class V, Group 3 permit, which includes all domestic wastewater wells. See Fla. Admin. Code R. 62- 528.300(1)(e)3. A Group 3 well involves the injection of fluids that have been processed through a permitted domestic wastewater treatment plant. Even though the County is requesting a permit for a Class V well, at the request of the Department, it submitted a different (and more stringent) type of application (a "900" application) since the Department has the authority to apply "any of the criteria for Class I wells" if it believes that the well may cause or allow fluids to migrate into an underground source of drinking water which may cause a violation of primary or secondary drinking water standards. See Fla. Admin. Code R. 62-528.605(2). (A Class I well is a well used to inject hazardous waste below the lowermost formation containing an underground source of drinking water.) In this case, the Department opted to apply certain Class I construction standards for the well, in addition to the normal standards for Class V wells. Those standards are found in Florida Administrative Code Rule 62-528.400. This means that the County will be held to a higher standard than a general underground injection control permit. Florida Administrative Code Rule 62-528.605 contains the Class V well construction standards. For the following reasons, the County has given reasonable assurance that all criteria will be met. Subsection (1) of the rule requires that "a well shall be designed and constructed for its intended use, in accordance with good engineering practices, and the design and construction shall be approved by the Department with a permit." The evidence clearly establishes that good engineering practices have been followed by the County for the design and construction of the well. Subsection (2) requires that an applicant design and construct the well so that it will not "cause or allow fluids to migrate into an underground source of drinking water which may cause a violation of a primary or secondary drinking water standard . . . or may cause fluids of significantly differing water quality to migrate between underground sources of drinking water." Subsection (3) is also directed at the migration of fluids. The evidence shows that the migration of fluids between aquifers will be prevented as a part of the design and construction of the ASR well program. The design chosen by the County has been proven to prevent migration of fluids between aquifers, and it will preserve the integrity of the confining beds. The combination of steel casing and cementing prevents the migration of fluids along the borehole. The well will be constructed by a Florida licensed contractor, as required by Subsection (4). The remaining criteria in the rule will be satisfied during the construction process. Florida Administrative Code Rule 62-528.620 contains reporting requirements for Class V wells. All of these requirements are included in the draft permit and will be met by the County. The Department has also included Special Condition 1(h) in the draft permit, which provides that nothing will be injected into the well that does not meet the Federal Primary Drinking Water Standard. This condition is drawn from Florida Administrative Code Rule 62-528.307, which specifies general conditions to be included in underground injection control permits. In accordance with this condition, the County will monitor the movement of fluid to ensure that there are no violations. The County has also demonstrated that there will be no hazardous waste injection, as prohibited by Florida Administrative Code Rule 62-528.600(1)(a). Finally, the requirements of Florida Administrative Code Rule 62-528.630(3) do not apply at this time since the proposed permit is only for construction of a well, and not the injection of water. Class I Well Construction Standards Because the Department has imposed more stringent construction standards on the County, the Class I well construction standards found in Florida Administrative Code Rule 62-528.410(1) come into play. The County has demonstrated that it has complied with the requirement that the well be cemented and cased. In addition, the County has considered corrosion protection in the cementing and casing of the proposed well. Because the casing will be cemented, coating is not required. Finally, there will be no open annulus (spacing between the casings and the bore hole) in the ASR test well. Other Requirements Drilling Geophysical surveys will be conducted during the pilot hole drilling stages to collect hydrogeologic information. Further, drill stem tests will be conducted throughout the drilling, and a driller's log will be maintained. See Fla. Admin. Code R. 62-528.410(3). Casing Steel casing will be used, taking into consideration the possible corrosion of steel. The life expectancy of the well was considered, as required by Florida Administrative Code Rule 62-528.410(4)(a), and was determined to be unknown. Cement Type 2 cement will be used, which is sulfate resistant and is specifically designed for use in regions such as Florida. Testing Geophysical logs will be used during the construction and testing of the well to verify the physical conditions of the well and confirm that construction is proceeding according to the plan. Also, geophysical surveys will be conducted during pilot hole drilling stages to collect subsurface hydrogeologic information. Environmental concerns Once a drilling contractor is selected, the location for the disposal of drilling fluids will be submitted for Department approval in accordance with Special Condition 1(b) in the draft permit. Monitor well construction standards The monitor well will meet all construction requirements under Florida Administrative Code Rule 62- 528.420. (The same standards that are applied to Class V wells are also applied to monitor wells.) General design considerations Exploratory pilot hole drilling stages will be conducted to collect hydrogeologic information, and complete sets of geophysical surveys will be performed. Because cement generates heat, temperature surveys will be run as a part of the construction sequence to verify coverage of the cement. This means that tools will be lowered into the hole after each cementing stage to verify coverage. Monitoring requirements Florida Administrative Code Rule 62-528.425(1)(d) requires that an applicant perform "a demonstration of mechanical integrity . . . at least once every five years during the life of the well." Details to accomplish this are found in both the application and the draft permit. Florida Administrative Code Rule 62-528.425(1)(f) requires that the background water quality of the injection zone and monitoring zone be determined prior to injection. The County will perform this task before injection occurs. Florida Administrative Code Rule 62-528.425(1)(g) requires that monitor wells be installed above the injection zone near the project. The County will construct three wells, as required by the rule. They will also be placed at a sufficient distance from the project, as required by Florida Administrative Code Rule 62-528.425(1)(h), and the specific monitoring intervals are detailed in the draft permit. Reporting requirements The Department requires periodic data reports and progress reports regarding eight separate types of information. See Fla. Admin. Code R. 62-528.430(1)(a). These reporting requirements will be performed and followed. Because a Class V well may be required to be plugged and abandoned, the Department requires a plugging and abandonment report. See Fla. Admin. Code R. 62-528.625. All requirements under this rule have been met, and the County has the financial resources to accomplish this task, when required. General Class I permitting requirements Florida Administrative Code Rule 62-528.440 sets forth general permitting requirements for Class I and III wells. Because the Department has opted to impose certain Class I criteria on the County's application, some of the criteria in this rule apply. They include special conditions 1(a), (c), and (e) in the permit for well construction, system modification, and fluid injection, all of which have been, or will be, met by the County. In addition, the duration for the operation permit cannot exceed five years, and the County was required to submit an application for a permit which conformed with the requirements of the rule. As a part of its application, the County established an area of review for the construction permit, taking into account the zone of endangering influence. See Fla. Admin. Code R. 62-528.300(4). (An area of review is the area surrounding an injection well, including the area of possible endangering influence.) This requirement was met because the established area of review is one mile even though the predicted area of influence is expected to be no more than 400 feet. As a part of the preceding analysis, the County also conducted an area of review study, as required by Florida Administrative Code Rule 62-528.440(6)(a). In doing so, the County evaluated the impact on the ASR well, and the impact the ASR well would have on the surrounding area. That evaluation determined that there are no water supply wells within the area of review. Because the construction permit only has a duration of five years, and given the County's supporting information submitted with the area of influence study, the Department has not required that the County provide a corrective action plan. See Fla. Admin. Code R. 62-528.300(5)(a). Class I well construction permit criteria All guidelines for constructing the well have been followed, and the construction of the well will not be a source of pollution. The County has provided reasonable assurance that the project will function in accordance with the requirements of Florida Administrative Code Chapter 62- 528. Hydrological modeling Finally, Florida Administrative Code Rule 62-528.405 specifies criteria for evaluating the geologic and hydrologic environment of Class I wells. The County has satisfied all criteria in the rule. Other Issues Exploratory well Petitioner contends that the Department should require the County to construct an exploratory well, as defined in Florida Administrative Code Rule 62-528.603(1), rather than a test well. That rule defines an exploratory well as one being "drilled for the specific purpose of obtaining information to determine the feasibility of underground injection at the proposed site." However, Florida Administrative Code Rule 62-528.450(1)(b) requires an exploratory well only "for those projects located in an area where available information is lacking concerning geologic or hydraulic confinement or existing information indicates that geologic or hydraulic confinement may be poor or lacking." For example, an exploratory well would be required in a remote area (such as certain parts of Polk County) where the Department had insufficient literature, studies, or prior history concerning the general geology across and around the site. In this case, two nearby ASR systems are located in the Englewood Water District and near the Peace River and use the same storage zone as that proposed by the County. Those systems have been operating for a number of years, and the County and Department can draw upon that experience. Given this significant regional geologic information, an exploratory well is not required. More importantly, the requirement for an exploratory well applies only to Class I well construction, and not Class V wells, and the Department properly exercised its discretion to not apply that requirement to the County's Class V application. Signature on the application and other documents Florida Administrative Code Rule 62-528.340(1)(c) requires that all permit applications by a local government be signed by "either a principal executive officer or ranking elected official." Also, subsection (2) of the same rule requires that "reports required by permits and other information requested by the Department shall be signed by a person described in subsection (1) of this section [a principal executive officer or the highest ranking elected official], or by a duly authorized representative of that person." Petitioner contends that these requirements were not met. The County's application was signed by James E. Caldwell, who was then the Manager of Sarasota County Utilities. At that time, Mr. Caldwell had overall responsibility for the County's utility operations. On August 27, 2002, James L. Ley, the County Administrator (and principal executive officer of the County), also executed the original copy of the application. (That is, on that date he signed the original application underneath Mr. Caldwell's signature.) By doing so, Mr. Ley cured any previous technical deficiency in the application. Responses to requests for additional information which were submitted to the Department during the review process were signed by one of the County's outside consultants. However, on January 13, 2002, Mr. Ley submitted a letter to the Department authorizing various County employees and agents to act on his behalf in processing the instant application. Accordingly, the outside consultant was a duly-authorized representative of the chief executive and was authorized to sign those documents. Satisfaction of injection criteria Petitioner also contends that before a construction permit may be issued, the County must meet all principal treatment and disinfection requirements, as required by Florida Administrative Code Rules 62-610.466 and 62-528.563. However, those rules apply to permits which authorize the injection of reclaimed water into the groundwater. Here, the requested permit does not authorize injection, and therefore those requirements do not apply. Groundwater criteria Even though Petitioner conceded at hearing that the issue of whether the construction of the proposed wells would harm the environment was not raised in her Petition, the County provided reasonable assurance that this was not an issue of concern. Adequacy of permit conditions Petitioner also suggested at hearing that the proposed conditions in the permit are insufficient. However, she failed to show in what respect they were insufficient or how they should be amended. Water quality concerns Florida Administrative Code Rule 62-528.605(3) requires that a Class V well be constructed so that its intended use does not violate the applicable water quality standards. On this issue, the evidence establishes that the construction of the proposed test well and monitor system will not discharge, emit, or cause pollution. Indeed, a well and monitor station does not emit or discharge pollution and, if constructed according to the technical requirements of Florida Administrative Code Chapter 62-528, does not cause pollution. Therefore, the County's compliance with the technical requirements of the Department's regulations is reasonable assurance that the proposed system will not cause pollution. I. Request for Attorney's Fees and Costs In its Proposed Recommended Order, the County has requested an award of attorney's fees and costs on the theory that Petitioner is a non-prevailing party who has participated for a "frivolous, meritless, and improper purpose" within the meaning of Section 120.595(1), Florida Statutes. This argument is based on the assertion that Petitioner is a non- prevailing party, that is, she failed to substantially change the outcome of the proposed final agency action which is the subject of this proceeding, and she "failed to produce any witnesses or evidence to support [her] claim that the proposed permit that was the subject of this proceeding should not be issued." While it is true that Petitioner is a non-prevailing party, she attempted to utilize the testimony of three expert witnesses previously retained by the City of Venice, a former party in Case No. 01-3516. Those subpoenas, however, were quashed on August 16, 2002, and that ruling was memorialized in an Order dated August 19, 2002, or just before the final hearing began. Without those witnesses, Petitioner's presentation was obviously limited in some respects.4 Further, until the final hearing, Petitioner assumed that evidence in support of her allegation that the injectate would harm the water quality would be admissible and relevant. (As this Recommended Order clearly points out, however, not a single drop of water can be injected into the well until a modification of the permit is obtained, and therefore such evidence is irrelevant.) During the course of the hearing, the undersigned sustained objections by the County and Department to the introduction of such evidence. This ruling had the effect of limiting the scope of the issues to be tried. Despite these limitations, her participation cannot be described as being frivolous or meritless, as claimed by the County, and it is found that she did not participate for an improper purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting Permit No. 160882-001- UC authorizing the County to construct one Class V, Group 3 aquifer storage and recovery injection well and monitor well system in Sarasota County, Florida. DONE AND ENTERED this 19th day of April, 2004, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 2004.
The Issue The issue is whether Respondent Florida Power & Light Company is entitled to Permit No. 247895-007-UC for the conversion of an exploratory well to an injection well, the construction of a second injection well, and the operational testing of both wells, which are intended to inject industrial wastewater from a power plant into the Boulder Zone of the Upper Floridan Aquifer.
Findings Of Fact Applicant is Florida's largest electric utility. It provides service to over 4.4 million customer accounts in 35 counties. Applicant operates 14 electric-generating sites in Florida to satisfy its statutory obligation to furnish each person applying for service reasonably sufficient, adequate, and efficient service upon the conditions set forth by the Public Service Commission. By Final Order Approving Certification dated December 26, 2006, the Siting Board granted full and final certification to Applicant for the location, construction, and operation of the WCEC project, Units 1 and 2, to an immediate capacity of 2500 megawatts and to an ultimate capacity of 3300 megawatts (3800 megawatts, according to the Stipulation). Applicant anticipates obtaining permits for a third deep injection well and second dual zone monitoring well when the third generating unit is constructed. Units 1 and 2 at the WCEC will be combined cycle power plants that produce power by the ignition of a combination of natural gas and compressed air that force expanding air through turbines that are connected by shafts to generators. The waste heat produced by this process is recovered by steam generators that, using steam turbines, turn shafts connected to other generators, thus improving the efficiency of the power- production process. Applicant owns and operates 12 combined cycle power plants. The certification issued by the Siting Board authorizes Applicant to power the plant by natural gas or ultra-low sulfur light fuel oil, which is diesel fuel. Diesel fuel is a backup source if natural gas is unavailable. The WCEC will store 12.6 million gallons of diesel in two onsite tanks, which are segregated from the rest of the site by secondary containment in the form of reinforced concrete that contains no drains. The Final Order of the Siting Board describes, but does not itself permit, an onsite wastewater disposal process using a deep well injection system consisting of two 3200-foot deep injection wells and a dual zone monitoring well. WCEC Units 1 and 2 would be the first power units operated by Applicant to use deep well injection for the disposal of wastewater associated with the production of power. Other plants operated by Applicant use cooling ponds, such as a 6000-acre cooling pond at its power plant in Martin County. The WCEC sits on only 220 acres, so Applicant could not have constructed a sufficiently large onsite pond to accept the wastewater from the operation of Units 1 and 2. Although Applicant operates power plants on smaller sites, such as the 350-megawatt Cutler plant on 40 acres, the WCEC is a very small site given the power generating capacity of the facility. The WCEC is in west Palm Beach County 20 miles due west from the Atlantic Ocean and 25 miles southeast of Lake Okeechobee. Draining Lake Okeechobee, the L-10/L-12 canal passes immediately adjacent to the WCEC site on the south side of State Road 80, which runs along the southern border of the WCEC site. Immediately across State Road 80 from the WCEC site, about 1000 feet to the south, is the Arthur R. Marshall Loxahatchee National Wildlife Refuge (National Wildlife Refuge). The WCEC abuts a quarry operated by Palm Beach Aggregates (PBA Quarry). Already located adjacent to the WCEC is Applicant's Corbett transmission substation and high-voltage transmission lines. Petitioner Coalition is a member-based, unincorporated association that has been in existence for at least five years and serves, among other things, as an umbrella organization for other environmental organizations. As an umbrella organization, Petitioner Coalition facilitates the coordination, among these other organizations, of efforts to educate the public about the environment, assess threats to the environment, take action to protect the environment, and participate in recreational activities involving regional natural resources. Petitioner Coalition directly performs these tasks and engages in these activities, as well. Petitioner Coalition conducts monthly meetings that are attended by 15-25 persons, although it maintains a mailing list of about 400 persons, who constitute its membership. About 80-90 percent of the members of Petitioner Coalition reside in Palm Beach County; two members reside within 1.5 miles from the WCEC site. Many more members reside in the Loxahatchee and "Acreage" areas, which are not far from the National Wildlife Refuge and WCEC site. Petitioner Coalition does not charge dues, but collects donations from members and other persons. Each year, Petitioner Coalition conducts two larger conferences, which are open to the public. Members of Petitioner Coalition regularly use the L-8 canal, which borders the east side of the WCEC site. The "20-mile bend" entrance to the National Wildlife Refuge is one-half mile west of the WCEC site, and many members of the Coalition use this entrance to enter the refuge for hiking, running, biking, bird-watching, canoeing, fishing, and other outdoor activities. The vast National Wildlife Refuge forms important headwaters for the Everglades. Petitioner Tsolkas is the chairperson of Petitioner Coalition and engages in the member activities described above. Petitioner Larson resides in Loxahatchee, about 2.5 miles east of the WCEC site. She resides on a 1.63-acre lot and relies for her potable water on a well drilled about 125 feet deep into the surficial aquifer. Petitioner Christensen resides about 3 miles from the WCEC site. He has hiked and observed wildlife in the National Wildlife Refuge, as well as drawn spiritual comfort from this natural resource. As noted in the Preliminary Statement, the permitting of IW-1 and IW-2 is at issue in these cases. The proposed injection well system comprises these wells and DZMW-1, which has been permitted and is under construction. One other well is of interest in this case, Exploratory Well 1 (EW-1). On April 25, 2006, Applicant commenced the drilling of EW-1. The purpose of this project was to obtain data to determine the suitability of the WCEC for the onsite, deep well injection of non-hazardous industrial waste. For EW-1, Applicant obtained from DEP Permit No. 247895-001-UC, which was issued on January 11, 2006. Applicant intended to drill EW-1 to a depth of 3400 feet, determine that the location was suitable for an injection well system, and convert EW-1 to a dual zone monitoring well, but EW-1 instead became what could be deemed a functional alternative injection lesson (FAIL) well. The most immediate information derived from this FAIL well was that, at 2230 feet depth, a dredge zone existed at the location of EW-1. Although the bore hole initially reached 2510 feet, the well itself could not be extended deeper than 2220 feet. A dredge zone is a fracture zone of uncertain thickness in a confining unit. At the site of EW-1, the dredge zone extends through at least much of the upper half of the confining unit directly above the proposed injection. Thus, Applicant did not obtain from EW-1 a complete picture of the critical confining zone. However, Applicant obtained information, from top to bottom, about the depths of the surficial aquifer, upper and lower limits of the Upper Confining Unit, upper and lower limits of the Upper Floridan Aquifer, and depth of the point at which, near the bottom of the Upper Floridan Aquifer, total dissolved solids (TDS) exceed 10,000 mg/L. As noted in the conclusions of law, the depth at which the water crosses this TDS threshold marks the deepest extent of an underground source of drinking water (USDW). The data obtained from drilling EW-1, especially the geophysical logs, supported analysis that the top of the Upper Floridan Aquifer is 920 feet deep and the bottom is 1700 feet deep, the top of the Middle Floridan Confining Unit is 1700 feet deep and the bottom is 2005 feet deep, the base of the USDW is 1890 feet deep, and the top of a "fractured and transmissive" interval (i.e., the dredge zone) is 2005 feet and the bottom is 2240 feet deep. FPL Exhibit 13, Technical Memorandum from David McNabb, LBFH, Inc., to DEP and Applicant dated December 14, 2006, page 10. As noted below, the analysis of the data was incorrect as to the bottom of the Middle Floridan Confining Unit, probably because drilling of EW-1 did not extend past the dredge zone. Also, as noted below, later water quality testing established a slightly deeper USDW, between 1930-1941 feet deep. The unconsolidated material in a dredge zone tends to fall into the drill hole after penetration by the drill bit. The inflow of material slows the drilling because it is necessary to grind up and remove the material that has fallen into the drill hole. The small drill bit used for EW-1 meant that the grinding and removal process was slow. A dredge zone does is not necessarily indicative of vertically extensive fractures or fissures or poor confinement in the formation containing the dredge zone. Also, a dredge zone typically extends only a limited distance laterally. Thus, the significance of the dredge zone is largely restricted to the impediment that it presented to drilling. FPL Exhibit No. 13 is the EW-1 Final Report. Attachment K sets forth the pilot hole water quality field data and laboratory analysis. The TDS values are all under 10,000 mg/L. The highest TDS value is 9234 mg/L, which is at 1930 feet deep. This is the deepest point from which a pilot hole water sample was taken. FPL Exhibit No. 13, Attachment L to sets forth the data and analysis from straddle-packer testing (packer testing) Packer testing is a more elaborate testing process that involves inserting two rubber stoppers, or packers, at intervals into the well and inflating them, so as to isolate the interval between them. Prior to testing, the water is allowed to settle from the disturbance of drilling. The rate at which the water level recovers in the interval is a measure of permeability and indicates whether the packers are in a confining unit or an aquifer. Packer testing examines only the native groundwater, not the drilling-bit coolant, so it produces more reliable water-quality data than testing of pilot hole water. The deepest packer test is 1924-1941 feet, at which interval TDS are 18,696 mg/L. At 1848-1865 feet, TDS are 9664 mg/L. At 925-1055 feet, which is the only other interval tested, TDS are 4148 mg/L. After several weeks of trying unsuccessfully to penetrate past the dredge zone and given the exigencies of time, Applicant abandoned the project to drill EW-1 to a sufficient depth that it could be incorporated into an injection well system. By "Minor Modification" to Permit No. 247895-001-UC, dated August 10, 2006, DEP permitted Applicant to convert EW-1 to a monitoring well in the Upper Floridan Aquifer, which Applicant anticipates may be tapped by water supply wells on the site sometime in the future. Applicant then backplugged the pilot hole to create a monitoring interval of 1015-1100 feet depth. After successfully pressure testing EW-1, Applicant filed a Well Completion Report showing a completion date of August 22, 2006. On December 11, 2006, Applicant began drilling EW-2. Applicant chose a location 6000 feet south of EW-1 for the location of EW-2 to avoid the dredge zone that it had encountered when drilling EW-1. In an abundance of caution, though, Applicant used a larger-diameter drill bit, so that, if it encountered another dredge zone, it would be able to grind and remove the fallen materials more easily. The permit number for EW-2 is 247895-002-UC, which was issued on December 6, 2006. FPL Exhibit No. 16 is the Final Report on EW-2. Applicant successfully drilled the pilot hole at EW-2 to a depth of 3411 feet and completed drilling on May 4, 2007. The data obtained from EW-2 established the bottom of the Upper Confining Unit at 975 feet deep, the top of the Upper Floridan Aquifer at 975 feet and the bottom at 1905 feet, the base of the USDW at 1932-1959 feet, the top of the Middle Floridan Confining Unit at 1905 feet and the bottom at 2665 feet, and the top of the Lower Floridan Aquifer, which is known as the Boulder Zone in this region, at 2665 feet. The drilling, which stopped at 3411 feet, did not establish the bottom of the Boulder Zone. Because EW-2 was not permitted, at that time, as an injection well, Applicant could not inject fluids into the well to learn more of the nature of the injection zone. However, it is clear that the Boulder Zone is a highly transmissive (due to its thickness), fractured, and cavernous interval within the Lower Floridan Aquifer. These factors militate against a build-up in pressure at an injection site in the Boulder Zone. It is also clear that the Boulder Zone presents low horizontal hydraulic conductivity, which suggests that injected fluid will travel only a few feet per year. FPL Exhibit No. 16, Attachment N contains the pilot hole water quality data. The pilot hole water quality data reveals an abrupt increase in TDS from 4800 mg/L at 2030 feet to 13,000 mg/L at 2060 feet. After remaining at least 30,000 mg/L from 2100 feet to 2300 feet, TDS drops abruptly to 20,000 mg/L at 2330 feet and then drops steadily (with one minor increase) from 2330 feet to 2630 feet, where TDS falls to 9860 mg/L. TDS remains below 10,000 mg/L from 2630 feet to 2730 feet; at 2800 feet, TDS reaches 30,000 mg/L and remains at this level (with two minor exceptions) to the deepest sampling depth of 3400 feet. The pilot hole testing does not suggest that a deeper USDW occurs at 2330-2630 feet; rather, these data signal an extremely unproductive layer within the Middle Floridan Confining Unit. Applicant drilled these wells using a closed circulation system, which necessitates the introduction at specific intervals of external-source freshwater to cool the drilling bit. The rate of introduction may reach 50 gallons per minute. The EW-2 Final Report notes the "extremely unproductive nature of the test interval" sampled by the last packer test, which is noted below to be at 2624-2642 feet, where the sampled zone produced less than a quart of water per minute with 175 of water level drawdown. FPL Exhibit No. 16, page 18. If Applicant were introducing anything approaching 50 gallons per minute at this depth, the pilot hole water test was essentially of the introduced freshwater, not native groundwater. FPL Exhibit No. 16, Attachment P contains the packer test data. Applicant packer tested five intervals: 1914-1932 feet, 1959-1987 feet, 2009-2027 feet, 2169-2187 feet, and 2624-2642 feet. TDS values for each of these intervals are 8060 mg/L, 21,400 mg/L, 24,100 mg/L, 37,300 mg/L, and 32,800 mg/L.2 These results confirm the base of the USDW at around 1930 feet and confirm that no USDW exists at 2624-2642 feet. FPL Exhibit No. 16, Attachment R reports the results from the sampling of the groundwater after the withdrawal of 130,000 gallons from the bottom of EW-2. TDS is 35,000 mg/L, which is the TDS of saltwater, and pH is 8.16, which is slightly base. The sampling revealed iron, sodium, zinc, arsenic, barium, chromium, manganese, chloride, fluoride, ortho- phosphate, sulfate, cyanide, two nitrogens, and phosphorus. The water sample also tested positive for radium-226 and radium-228. FPL Exhibit No. 16, Attachment O is the Core Sample Laboratory Report. This covers multiple samples from four rock cores: one core within the Upper Floridan Aquifer, two cores within the Middle Floridan Confining Unit, and one core within the Boulder Zone. Analysis of these samples indicates the vertical hydraulic conductivity of the rock cores within each of these units. The first rock core includes three samples from three depths: 1956 feet, 1960 feet, and 1962 feet. The tested vertical hydraulic conductivities are in the range of 10-6 to 10-7 cm/second.3 According to the information obtained from drilling EW-2, these depths are the lower part of the Upper Floridan Aquifer. (According to the information obtained from drilling EW-1, which is 6000 feet to the north, these depths are in the Middle Floridan Confining Unit.) The second rock core includes three samples from three depths: 2048 feet, 2062 feet, and 2065 feet. The tested vertical hydraulic conductivities are 10-3, 10-9, and 10-8 cm/second,4 respectively, even though, according to the information obtained from drilling EW-2, these depths are all in the upper part of the Middle Floridan Confining Unit. The third rock core includes two samples at two depths: 2193 feet and 2200 feet. The tested vertical hydraulic conductivities are 10-6 and 10-4 cm/second,5 respectively. The third rock core is also in the upper part of the Middle Floridan Confining Unit. The fourth rock core includes one sample: at 2828 feet, which is 100 feet into the Boulder Zone. The tested vertical hydraulic conductivity is 10-8 cm/second.6 The rock core data evidently present an incomplete picture of the hydrogeology. For instance, although the third rock core is 200 feet down from the top of the Middle Floridan Confining Unit, it displays higher tested vertical hydraulic conductivities than those displayed by the rock core taken from the Upper Floridan Aquifer. The second lowest vertical hydraulic conductivity among rock cores is found, not in the Middle Floridan Confining Unit, but in the Boulder Zone (which militates further against upward migration of the injected fluid). However, the highest vertical conductivity among rock cores is found, not in an aquifer, but in the Middle Floridan Confining Unit, although within 50 feet of the top of this unit (suggestive perhaps of some unevenness in the top of this confining unit). Two of the three values for vertical hydraulic conductivity in the rock core of the Upper Floridan Aquifer are one to three orders of magnitude lower than the values for vertical hydraulic conductivity in the rock core 200 feet below the top of the Middle Floridan Confining Unit. All of these results are assessments of only a few feet of rock within hundreds of feet of aquifer and confining unit and do not reflect other factors, such as porosity, which is a measure of how much rock is open space. FPL Exhibit No. 16, Attachment I is the Lithologic Log for EW-2. This log reports the composition of formations, as well as porosity and permeability. For the most part, the materials above 2000 feet are limestone with moderate to high porosity that are poorly to moderately consolidated. A band of dolomite, mostly well consolidated, replaces limestone from 1670 feet to 1720 feet. After a couple of hundred feet of limestone, dolomite again predominates over limestone at about 1900 feet and extends down nearly 2200 feet, where a 70-foot band of dolomite occurs, followed by a band of predominantly limestone from 2620 feet to 2840 feet. From 2840 feet down, which is the Boulder Zone, dolomite predominates. From 2870 feet to 2910 feet, the unit is of low porosity and well consolidated. The only reports of permeability at these depths indicate poor or fairly poor permeability from 2620 feet to 2700 feet, then predominantly poor permeability with some fair permeability from 2700 feet to 2760 feet, and then fair permeability from 2760 feet to 2790 feet, which is the lowest 30 feet of the Middle Floridan Confining Unit. FPL Exhibit No. 16, Attachment D states that the pilot and reamed holes deviates only 1/4 of a degree through 3400 feet. This is important because, if the reaming for the well casing does not follow the pilot hole, the uncased pilot hole may be left as a vertical passage for water to penetrate through confining units. The construction of EW-2 includes the installation through the duration of the well of progressively smaller steel casings with the following diameters, from top to bottom: 72 inches, 60 inches, 48 inches, 36 inches, and 20 inches (which runs nearly the entire length of the well). The thickness of the casing wall is 3/8 inch, except for the final segment which is 1/2-inch thick and seamless. The inside and back of all casings, except the final casing, are encased in American Society of Testing and Material (ASTM) C150 Type 2 cement, which is suitable for use in saline water. The final casing (the 20-inch diameter) is encased only on the back. The cement on the outside of the exterior casing is added in such quantities to ensure that it forms a tight bond between the casing and the confining formation wall. To ensure the efficacy of the bonds formed by the cement, Applicant conducts temperature tests, a video survey, and radio tracer surveys. On the inside wall of the 20-inch casing, upon conversion of EW-2 to IW-1, will run a reinforced fiberglass pipe or tube. At the base, a packer isolates the fluid-filled annulus, or space, between the injection tubing and the final casing, and a corrosion inhibitor is injected into that space. No injection well using this form of tubing and packer construction has ever provided a vertical channel for water from the injecting zone (or above) to pass up through a confining bed and into an USDW. After final analysis of all of the available data, the Final Report for EW-2 concludes that the top of the Boulder Zone is at 2790 feet, the top of the Middle Floridan Confining Unit is at 2000 feet and the bottom is at 2790 feet, and the base of the USDW is 1932-1959 feet. These depths are all credited, although the top of the Middle Floridan Confining Unit is probably 100 feet deeper, so that the thickness of this unit is around 700 feet, not 800 feet. The Final Report recommends that EW-2 be converted to a Class I deep injection well, with an injection zone from 2778 feet to 3411 feet, for the disposal of non-hazardous waste from the WCEC. On March 2, 2007, Applicant submitted an application for the construction and operational testing of DZMW-1 at the site of EW-1. This application resulted in the issuance of proposed Permit No. 247895-006-UC, which, as noted above, became final when another petitioner in two other cases withdrew its challenge to the proposed permits for DZMW-1 and IW-1 and IW-2. Pending completion of the analysis of the data from EW-2, the proposed permit for DZMW-1, which is dated June 5, 2007, states that the upper monitoring zone is anticipated to be 1955-1975 feet deep, and the lower monitoring zone is anticipated to be 2160-2180 feet deep. These depths represent, respectively, conservatively deep values for the base of the USDW and the top of the Middle Floridan Confining Unit (even if it is 100 feet deeper than reported). The record contains no reports from the construction of DZMW-1, perhaps because work had not progressed very far at the time of the final hearing. On April 25, 2007, Applicant submitted the Application, which is FPL Exhibit No. 19. The Application is for approval to convert EW-2 to IW-1, construct IW-2, and operationally test both wells. Besides completed forms, the Application comprises the Supporting Information for Construction Permit Applications for a Class I Deep Injection Well System at the Florida Power & Light Company West County Energy Center (Supporting Information), one table, 11 figures, and ten attachments. As stated in the Stipulation, the Application was signed by a responsible corporate officer of Applicant, and Applicant has also satisfied all financial-responsibility requirements. As stated in the Stipulation, a public meeting on the Application took place on September 10, 2007. DEP received public comments on the Permit and submitted a written response to these comments. On September 13, 2007, DEP issued the Notice of Intent for Permit. DEP also prepared a fact sheet for the proposed Permit. Attachment F describes the construction specifications for IW-1, which, as EW-2, was largely finished at the time of the Application, and IW-2. For the conversion of EW-2 to IW-1, Applicant proposed to install 2770 feet of 16-inch diameter fiberglass reinforced pipe and fill the annular space between this tubing and the 20-inch casing with a specified solution, as well as conduct various tests of annular pressure and the injection well. For the construction of IW-2, Applicant proposed almost the same technique already described as to IW-1, although the casings were smaller in diameter, probably due to the elimination of concerns about encountering a dredge zone. The Supporting Information discusses the overall injection well system. The DZMW-1 is to monitor intervals above and below the base of the lowermost USDW at the site. DZMW-1 will be 145 feet west of EW-2 and will provide monitoring for IW-2, which, according to Figure 2, will be within 150 feet west of DZMW-1. The injection capacity of each injection well is 7.29 million gallons per day (mgd) at an injection velocity of 10 feet per second. Supporting Information, page 2. Based on projected power demands, Applicant anticipates that each operating injection well will operate at an average rate of 5 mgd. Average and maximum injection pressures will probably be 40 pounds per square inch (psi) and 50 psi. The purpose of IW-2 is to serve as a "back-up" to IW-1. Supporting Information, pages 2 and 5. Applicant is constructing two injection wells so that "when one well is out of service, flows will be diverted to the operating well." Supporting Information, page 5. As authorized by the certification issued by the Siting Board, the principal water sources for WCEC Units 1 and 2 are the Upper Floridan Aquifer and the L-10/L-12 canal, as the South Florida Water Management District determines that this surface water is available for withdrawal. Applicant will also obtain potable water from Palm Beach County. WCEC Units 1 and 2 require 14.5 mgd of water. The principal water uses of the WCEC Units 1 and 2 are cooling tower water and process water, as well as potable water for use in the administration building. The cooling tower wastewater (also known as "blowdown") is the water that has cooled the power generating equipment and itself been cooled in the cooling towers. Cooling tower blowdown makes up 88 percent of the wastewater generated by the WCEC Units 1 and 2. The process water is water that has been demineralized by reverse osmosis and makes up for the water lost in the steam-generating process. The resulting wastewater is the heat recovery steam generator (HRSG) blowdown, which makes up 6.5 percent of the wastewater generated by WCEC Units 1 and 2. The power generating process recycles its cooling and process waters, but constantly removes slipstream to maintain balanced chemistry and avoid scaling from excessively base water that will damage the equipment. Another 5 percent of the wastewater generated by WCEC Units 1 and 2 will be derived from the reverse osmosis process, which generates water for the HRSG. The remaining 0.5 percent of wastewater is derived from miscellaneous wastewater streams. The Supporting Information states that an analysis of the injection fluid is not available and is not anticipated to be available prior to plant start-up. However, the Supporting Information states: "A sample of the injection fluid will be collected within the first 30 days of commercial operation of the power generating facility." FPL Exhibit No. 19, Supporting Information, page 5. FPL Exhibit No. 19, Attachment G identifies anticipated wastestreams. Based on "analytical characterization" of "historical data," Applicant will determine that the cooling tower blowdown, HRSG blowdown, demineralizer and reverse osmosis water, pretreatment wastewater, steam cycle water treatment, and miscellaneous wastewater streams are not hazardous and dispose of them into IW-1 or IW-2. Based on its vendors' "analytical characterization" of the chemicals that they supply, Applicant will determine that the cooling system water ("biocide additional chlorine, scale inhibitor, pretreatment chemicals") and leak-tracing dyes are not hazardous and dispose of them into IW-1 or IW-2. Based on "process knowledge," Applicant will determine that its treated sanitary wastewater is not hazardous and dispose of it into IW-1 or IW-2. This is the only non-industrial wastewater that Applicant proposes to inject into the injection well system, and the only wastewater whose hazardous/non-hazardous determination will be based explicitly on "process knowledge." Lastly, based on "analytical characterization" of the "wastestream," Applicant will determine whether the wastewater from the chemical cleaning of the HRSG and pre-boiler piping is hazardous. If so, Applicant will dispose of this wastewater by a licensed approved vendor. If not, Applicant will dispose of this wastewater into IW-1 or IW-2. Although an industrial wastewater, this chemical- cleaning wastewater is the only wastewater that Applicant or its agent will test and the only wastewater that Applicant anticipates may be hazardous. Attachment G adds that intermittent shock chlorine or other biocides will be used to prevent biofouling of the cooling system, and a chlorine solution will be fed into the cooling tower. A scale inhibitor, including sulfuric acid, will be added to the circulating water system to control the formation of calcium carbonate scales that can adhere to heat-transfer surfaces and impede cooling. Treated sanitary wastewater from an onsite package plant will be recycled to the cooling tower or disposed of directly through the injection well system. The chemical cleaning of the HRSG and pre-boiler piping is done during commissioning and periodically during the life of the plant. According to testimony, such cleaning, which may release chromium from the boiler tubes, is performed once every ten years. FPL Exhibit No. 19, Attachment H is the Proposed Monitor Program. For IW-1 and IW-2, at start-up, Applicant will test for primary and secondary drinking water parameters and standards. Continuously, Applicant will test these wells for flowrate and wellhead pressure. For the wastestream entering IW-1 and IW-2, Applicant will test weekly for TDS, chloride, specific conductivity, pH, and temperature. For DZMW-1, Applicant will test for primary and secondary drinking water parameters and standards prior to start-up. Continuously, Applicant will test this well for water level. Weekly, Applicant will test DZMW-1 for the five items for which it tests the wastestream plus total phosphorous, sulfate, sodium, calcium, magnesium, potassium, carbonate, and bicarbonate. After operational testing and DEP approval, Applicant will decrease the frequency of testing from weekly to monthly. The Supporting Information calculates the Area of Review by determining the "zone of endangering influence," which is the lateral area in which the buoyant forces or increased pressure in the injection zone may cause migration of the injected or formation fluid into a USDW. The Area of Review is the land overlying the zone of endangering influence. The calculations are conservative because they assume that IW-1 and IW-2 are operated at each well's maximum permitted injection rate (7.29 mgd each) for ten years. Using a 200-foot high injection zone and 20 percent porosity for the injection zone, Applicant calculated that the radius of the bubble of injected fluid, from the point of injection, would extend 7526 feet. Applicant rounded this result off to two miles. No well, besides EW-2/IW-1, penetrates to the Middle Floridan Confining Unit within two miles of the proposed injection well system. Thus, Applicant was not required to undertake any Corrective Action to preclude the possibility that such wells could allow fluid to enter the USDW. The Permit is for the conversion and operational testing of EW-2 into IW-1, construction and operational testing of IW-2, and eventual incorporation of DZMW-1 into the subject injection well system. The Permit notes that the anticipated depth of IW-2 is 3250 feet, although field data will determine the final depth required for this injection well. The Permit notes that IW-1 is 3400 feet. The Permit states that the injection level for each well will be in the Boulder Zone from about 2775 feet to the total depth of each well, which is a vertical range of around 600 feet, at last as to IW-1. The Permit states that the Class I injection well system is designed for use at the WCEC for non-hazardous wastewater, primarily cooling tower blowdown. Permit Specific Condition 1.a requires proper operation and maintenance, including adequate staffing and training and adequate laboratory and process controls. Specific Condition 1.d prohibits any injection that causes or allows movement of fluid into a USDW, except as authorized by 40 C.F.R. §§ 146.15 and 146.16.7 Permit Specific Condition 2.h specifies the requirements to convert EW-2 to IW-1. These include taking a video survey of the length of the 20-inch diameter casing, installing 2770 feet of 16-inch diameter fiberglass reinforced pipe tubing, filling the entire annulus between the fiberglass reinforced pipe tubing and the final casing with a specified solution, conducting a pressure test of the fluid-filled annulus, performing a radioactive tracer survey, and conducting a preliminary capacity injection test. Permit Specific Condition 2.i specifies the requirements to construct IW-2. These are similar to those described above in the construction of EW-2/IW-1 except that the initial casings are somewhat smaller. Permit Specific Condition 2.j requires Applicant to add DZMW-1 to this Permit, either separately under its permit number or under the Permit number. This condition requires Applicant to take samples and determine the ambient groundwater quality in both zones of the DZMW-1 prior to the injection of any fluids into IW-1 or IW-2. Four weeks prior to use of IW-1 or IW-2, Applicant must start weekly sampling of the monitoring zones. Permit Specific Condition 2.l requires packer tests in the anticipated confining zone. Permit Specific Condition 2.m provides that Applicant shall use the DZMW-1 to monitor the confinement of the injection zone from overlying aquifers. The upper zone is the compliance point as to the USDW, and the lower zone is the compliance point as to vertical movement out of the injection zone. Permit Specific Condition 2.n requires Applicant to demonstrate confinement for IW-2 by using lithologic properties, geophysical evidence, and tests performed while pumping the formation. These requirements require proof of confinement during the drilling of IW-2. Permit Specific Condition 4.g requires DEP approval, pursuant to Florida Administrative Code Rules 62-528.401(4)(c), 62-528.420(4)(c), and 62-528.605(2), of the final selection of specific injection intervals. Permit Specific Condition 4.i requires that Applicant provide certain justifications for each request of a short-term injection test for IW-1 and IW-2. Generally, justification consists of the documentation to assure that confinement above the injection zone is intact. Permit Specific Condition 5.b imposes requirements on Applicant to obtain DEP approval for operational testing. Specific Condition 5.b.1-4 requires Applicant to provide DEP with certain materials prior to the approval of DEP for the commencement of operational testing. These are generally the documentation to assure that confinement above the injection zone is intact and the results of the short-term injection test. This condition notes that, under normal operating conditions, the velocity of each injection well may not exceed ten feet per second, although, in a multiple well system, each may run at 12 feet per second when the other well is inoperative due to testing or maintenance. During the injection test, Specific Condition 5.b.1-4 requires Applicant to collect injection flow rate, injection wellhead pressure, and monitoring well pressures in both zones. Also prior to obtaining DEP approval for operational testing, Specific Condition 5.b.6 requires Applicant to submit to DEP "[i]nformation concerning the compatibility of the injected waste with fluids in the injection zone and minerals in both the injection zone and the confining zone." Specific Condition 5.b.9 requires Applicant to provide DEP with a copy of a draft operation and maintenance manual. Specific Condition 5.b.13 requires Applicant to submit to DEP background water quality data from the monitoring and injection zones and analysis of these data for primary and secondary drinking water standards and minimum criteria parameters. Specific Condition 5.c imposes requirements on Applicant prior to starting operational testing. Specific Condition 5.c requires compliance with Florida Administrative Code Rule 62-528.450(3)(a), (b), and (c), which requires, among other things, "wastestream analysis." Specific Condition 5.d imposes requirements on Applicant within 90 days of starting plant operations. This condition refers to Florida Administrative Code Rules 62-528.425(1)(a) and 62-528.450(2)(f)3 and requires a wastewater stream analysis for primary and secondary drinking water standards. Specific Condition 6 imposes requirements on Applicant during operational testing. Specific Condition 6.a.4 requires Applicant to monitor the flow to the injection well at the wellhead and to control the flow to ensure that it does not exceed the rate at which the well was tested. Pursuant to Florida Administrative Code Rule 62-528.425(1)(b), Specific Condition 6.a.5 requires Applicant to continuously monitor the injection well system by recording and totalizing devices for effluent flow rate and volume and recording devices for injection and monitoring zone pressures. Specific Condition 6.a.9 provides: "The injectate shall be non-hazardous in nature at all times, as defined in 40 CFR, Part 261 and as adopted in Chapter 26-730, F.A.C." Specific Condition 6.a.10 requires mechanical integrity prior to injection. Specific Condition 6.a.11 requires Applicant to monitor and control the pressure at the wellheads to ensure that it does not exceed 66 percent of the tested pressure on the final casing. Specific Condition 6.a.13 requires Applicant to monitor the injection system and submit monthly operating reports to DEP concerning the flow, volume, and wellhead pressure of the injection well; chemical characteristics of the wastewater stream in terms of TDS, chloride, specific conductance, three types of nitrogen, phosphorous, pH, and sulfate; physical characteristics of the monitoring well, including daily and monthly maximum, minimum, and average pressures; and chemical characteristics of the upper and lower monitoring zones in terms of, weekly, the items listed above plus total coliform and field temperature and, monthly, sodium, calcium, potassium, magnesium, iron and bicarbonate. Specific Condition 6.a.13.c provides that, after at least six months of weekly monitoring of the monitoring zones, Applicant may, based on a showing of groundwater stability, request that DEP reduce the monitoring frequency to monthly. Specific Condition 6.a.19 requires Applicant to submit annually to DEP a wastewater stream analysis for primary and secondary drinking water standards and minimum criteria, as identified on a list attached to the permit. The list identifies 95 primary drinking water items, including chromium, and 17 secondary drinking water items, including pH. The list also identifies 24 municipal wastewater items, such as ammonia, several volatile organics, two pesticides, biological oxygen demand, and temperature, which presumably are added because the wastewater will include effluent from Applicant's onsite package plant. Petitioners have identified two relevant issues. The first issue concerns the integrity of the Middle Floridan Confining Unit in its present state and after construction of the wells (i.e., well integrity), so as to prevent the injected fluids from migrating upward into the USDW. The second issue concerns the composition and volume/pressure of the wastewater stream (i.e., whether it will meet the Permit criterion prohibiting hazardous wastes and, even if the injected fluids meet this criterion, whether the fluids, in terms of their composition and volume/pressure, will adversely affect the Boulder Zone and the bottom of the Middle Floridan Confining Unit). Applicant has provided reasonable assurance that the bottom of the Upper Floridan Aquifer is about 2000-2100 feet deep, and the USDW is in the lower reaches of the Upper Floridan Aquifer at around 1950 feet deep. The water samples from the packer test preclude the existence of a deeper USDW. Applicant has provided reasonable assurance that the Middle Floridan Confining Unit extends from no deeper than 2100 feet to about 2800 feet deep, for a minimum thickness of 700 feet. Applicant has also provided reasonable assurance that the injecting zone will be in the Boulder Zone of the Lower Floridan Aquifer, and the confining unit of the Middle Floridan Confining Unit will prevent the upward migration of the injected fluids into the Upper Floridan Aquifer and, thus, the USDW. The Middle Floridan Confining Unit is not homogenous. At places, it is fractured. At other places, it exhibits greater permeability and porosity than it does elsewhere. But, at the location of the proposed injection well system, the 700- foot thick Middle Floridan Confining Unit is ample insurance against upward migration of the injected fluids. DEP Program Manager for Underground Injection Control for the relevant district is Joseph May. Mr. May testified that he gets "nervous" when confining zones are only 300 feet thick, "antsy" when they are only 200 feet thick, and skeptical of the eligibility for a deep well injection permit when the confining zones are less than 200 feet thick. These are not rule criteria, nor did Mr. May intend them to be, but these values are useful in these cases, if only to suggest the suitability of this relatively thick confining unit to prevent the upward migration of injected fluids. Other factors, of course, contribute to the efficacy of the confining unit. First, the Boulder Zone is highly transmissive, a function of the vast thickness of this zone. The characteristic tends to reduce the effect of pressure at the point of injection, relieving the force of pressure that might otherwise drive the injected fluid up through hundreds of feet of confining unit. On the other hand, the thickness of the Boulder Zone and low horizontal hydraulic conductivities suggest that the injected fluids will not travel far within the Boulder Zone, so the likelihood of the injected fluid's encountering a chimney is diminished over time. And, as time passes, the fluids will take on the characteristics of the native fluids in the Boulder Zone to the point that they are indistinguishable from these native fluids. This is particularly important as to TDS; as the differential in TDS between the injected and native fluids decreases, so will the buoyancy of the injected fluids. Nor will the injected fluid be especially buoyant. After five cycles, according to FPL Exhibit No. 25, the water drawn from the Upper Floridan Aquifer will have 24,505 mg/L of TDS, which is close to the TDS level of the native groundwater in the Boulder Zone. After five cycles, according to FPL Exhibit No. 24, the water drawn from the L-10/L-12 canal will have 4605 mg/L of TDS, so it will be buoyant, but many times less buoyant than if not recycled at the power plant. Petitioners rely on the failures of other deep injection wells as a basis for contending that Applicant has failed to provide reasonable assurance in this case as to the integrity of the confining unit. In an interesting turn, they rely on a recent work by one of Applicant's expert witnesses, Dr. Thomas Missimer. Dr. Missimer is a prominent licensed geologist with many years' field experience in Florida's geology and hydrogeology. Dr. Missimer recently co-authored (with Robert G. Malivea and Weixing Guo) an article, "Vertical Migration of Municipal Wastewater in Deep Injection Well Systems, South Florida, USA," published in Hydrogeology Journal (2007) 15: 1387-96. The focus of this article is on the vertical migration of municipal wastewater injectate. This low salinity, high density injection fluid is buoyant relative to the high salinity, low density water of the Boulder Zone of the Lower Floridan Aquifer, where the fluid is injected. In the article, Dr. Missimer states that southeastern Florida hosts 32 active Class I injection wells. Based on his review of the data, he finds that injected wastewater has migrated upward into the USDW at three sites: one in Palm Beach County and two in Dade County. Dr. Missimer finds that injected wastewater has migrated upward into the monitor zone below the USDW at another seven sites, all in Broward and Palm Beach counties. Dr. Missimer emphasizes that municipal wastewater is susceptible to upward migration due to its greater buoyancy than the saline water native to the Boulder Zone. Dr. Missimer characterizes the Boulder Zone as an area of high transmissivity that has received injected fluid wastes since 1943. A consequence of this high transmissivity is that the Boulder Zone "allows for minimal increases in pressure during injection." Coalition Exhibit No. 2, page 1391. Dr. Missimer notes that vertical hydraulic conductivities in the Middle Floridan Confining Unit vary by eight orders of magnitude with the dolostones having lower vertical hydraulic conductivities than the limestones. However, the main point of the article is to account for the fact that predicted vertical hydraulic conductivities in some failed injection wells, based on analyzed rates from core plug data, understated the actual migration rate of injected fluids by four orders of magnitude. Coalition Exhibit No. 2, page 1393.8 Dr. Missimer finds that enhanced vertical hydraulic conductivity in the Middle Floridan Confining Unit is likely due to fracturing in zones that may have a limited horizontal extent, creating a chimney through which buoyant injected fluid can migrate up relatively quickly. Suggesting that well- construction problems and possibly regional tectonic effects may have contributed to this fracturing, Dr. Missimer concludes: "The focus of confinement analysis should, therefore, be on the extent and distribution of fracturing rather than analyses of the properties of the rock matrix." Coalition Exhibit No. 2, page 1395. Most difficult for Petitioners' contentions is the testimony of Dr. Missimer concerning the thickness of the Middle Floridan Confining Unit at the subject site and the absence of fracturing in this unit, based on the sonic logs from EW-2/IW-1. Dr. Missimer testified that, based on the sonic logs in particular, there is over 700 feet of unfractured confining unit over the injection zone, and he has a "high level of confidence" that no material fracturing exists to undermine the integrity of this confining unit. Logically, the possibility of a relevant fracture decreases with the thickness of the confining unit. Nor does the construction of IW-1 and IW-2 provide a chimney through which the injected fluids can escape the Boulder Zone and migrate into the USDW. In no respect do the construction plans for IW-2 or construction or conversion plans for IW-1 depart from the requirements of DEP's rules or sound engineering and construction practices. These matters have been adequately addressed above. In particular, the DEP-imposed requirement to monitor and document the absence of any deviation in the orientation of well from the bore hole promises to eliminate a likely cause of past problems in the construction of deep wells. Finally, as to the integrity of the Middle Floridan Confining Unit, Petitioners contend that tectonic forces from blasting at the PBA Quarry threaten the integrity of the wells.9 Applicant purchased the WCEC site from the owner-operator of the PBA Quarry, which is an active limestone-mining operation on land adjacent to the WCEC site. In connection with the purchase, Applicant entered into a blasting agreement with the owner-operator of the PBA Quarry. This agreement imposes certain requirements on the owner-operator concerning the maximum size of blasts, minimum separation distances from the power plant (5000 feet starting June 1, 2006, and 7500 feet starting June 1, 2007), and coordination and notification provisions. Although Applicant has no experience with power plants located in close proximity to blasting operations, for two reasons, Applicant has provided reasonable assurance that the nearby blasting will not damage the injection wells (or either confining unit). First, as noted by the Black & Veatch geotechnical engineer retained by Applicant to examine the effects of blasting on the WCEC, excessive vibration, from any source, trips relays that protect equipment from damage due to excessive vibration. The most sensitive equipment at the plant will be the large rotating steam turbines. The Black & Veatch geotechnical engineer noted that the level of vibration that will trip these relays is much less than the amount that could cause any structural damage. These relays will effectively protect the injection wells from damage from blasting. Long before vibration from blasting could threaten the integrity of these wells (and certainly the Middle Floridan Confining Unit), the relays would trip, and Applicant would need to deal with the blasting before restarting the turbines. Second, Dr. Missimer examined the work of the Black & Veatch geotechnical engineer as to the extent of vibrations from blasting at the PBA Quarry. Explaining that the economics of blasting necessitates the use of just enough explosive material to loosen the substance to be mined, Dr. Missimer testified that the explosive forces dissipate in intensity and magnitude very quickly from the point of detonation. The maximum depth of the mining is 60 feet. Agreeing with the Black & Veatch analysis, Dr. Missimer determined that the force of blasting would be spent by 10,000 feet, and the nearest blasting will be 14,000 feet from the wells. Dr. Missimer noted that mining typically is allowed to within 500 feet of public supply wells, which are not built to the standards of Applicant's injection wells, and he has not found any documented reports of blasting-induced damage to such wells. Dr. Missimer testified that the force of the PBA Quarry blasting would not affect the Middle Floridan Confining Unit either. Lastly, Petitioners focus on the composition and volume/pressure of the injected fluids. These are important matters for two reasons. Excessive pressures or corrosive elements in the injected fluids could undermine the integrity of the Middle Floridan Confining Unit at the location of the injection wells. Also, the injection of hazardous waste, in addition to violating the Permit, would intensify the consequence of an upward migration of injected fluids. More than once, testimony in support of reasonable assurance justifiably emphasized the common characteristics of the injected fluids and the native groundwater. Notwithstanding its confidence in the integrity of the Middle Floridan Confining Unit at the location of IW-1 and IW-2 and the high transmissivity of the Boulder Zone, DEP has imposed, based on the law, significant restrictions on Applicant in terms of the injection fluids. In all but two respects, Petitioner's concerns as to the composition and volume/pressure of the injected fluids are misplaced because Applicant and the Permit provide reasonable assurance that the composition and volume/pressure of the injected fluids will comply with applicable law and will not cause any injected fluids to migrate up into the USDW. The two exceptions, for different reasons, are minor and easily corrected. In general, Petitioners' evidence failed to reveal any flaws in the analysis of the experts of Applicant that the pressures in the injection zone will adversely affect the Boulder Zone. However, one issue concerning volume/pressure arises due to what appears to be inadvertence in drafting the Permit. Applicant has applied for approval of two injection wells because it needs one well to serve as a back-up to the other well, not to operate both wells simultaneously. The reliability of the WCEC to produce power is dependent on, among other things, the ability of Applicant to dispose of vast volumes of wastewater produced daily by plant operations. Applicant has not previously predicated the uninterrupted operation of one of its many power plants on the operation of an injection well, so it understandably sought the comfort of redundancy: if one injection well goes out of service, the other well can be activated, and the plant can continue operating without interruption. Applicant has proposed an injection well system with a single-well capacity (although that could be achieved by both wells operating simultaneously at a combined rate not to exceed the permitted rate of a single well). Applicant intends for the proposed injection well system to pump at a rate of 10 feet per second, not 20 feet per second--or 12 feet per second during emergencies, not 24 feet per second. The 10/12 feet per second pumping rate is consistent with the testimony of Applicant's primary expert on this point. David McNabb, a licensed geologist retained by Applicant, testified that the Boulder Zone could receive water at the rate of 10 feet per second or 12 feet per second during emergencies. Mr. McNabb added that, during the injection test, Applicant would operate only one well at a time. He also calculated the zone of endangering influence using the maximum pumping rate of 10 feet per second, not 20 feet per second. Mr. McNabb specifically confirmed during cross-examination that only one well would be pumping at a time. However, the Permit implies the injection well system is approved for 20 feet per second, as did Mr. May's testimony at one point. The confusion arises for two reasons. First, the Permit nowhere explicitly sets the maximum rate for the injection well system or the two injection wells individually. Second, Permit Specific Condition 5.b.4 states that each well may be tested at 12 feet per second (which is approved by a DEP rule cited below) "since, in a multiple well system, this can be allowed when one of the other injection wells is inoperable due to planned testing or maintenance." It is in this explanation that the problem arises. The explanation implies that an emergency arises when a well requires service and Applicant can no longer obtain a combined rate of 20 feet per second out of both wells, so it may then at least obtain 12 feet per second out of the well that remains operative. The subject injection well system will be a multiple well system, but with only one well operating at a time (or both wells operating at the permitted rate of a single well). The DEP rule, quoted below, allows the increased rate of 12 feet per second for testing, maintenance, or emergencies. In the system proposed by Applicant, the servicing of the other well is not an emergency and does not justify operating the activated well at 12 feet per second. This condition is not an emergency because Applicant always intended that the other well, and its 10 feet per second capacity (12 feet per second in an emergency) serve in a backup capacity. This is a minor problem that is easily corrected by adding language to the Permit specifying that the maximum rate of pumping is 10 feet per second (12 feet in an emergency) whether one or both injections are pumping at any given time and the unavailability of one of the wells is not an emergency that would allow pumping at the rate of 12 feet per second. The other issue concerning the composition of the wastewater is more substantial theoretically, but not practically on the facts of these cases. This issue involves how Applicant is to determine that the wastewater disposed into the injection wells is free of hazardous waste. Except as to hazardous waste, there is no issue as to the composition of the injected fluids or wastewater. Applicant will strive to maintain neutrality in the recycled cooling and process waters to avoid damage to the plant equipment. Too acidic, the water will induce corrosion. Too base, the water will induce scaling. Dr. Missimer testified that the injecting fluid would likely be neutral and not affect the formations into which it comes into contact. Applicant intends to use descalers, which are necessarily acidic, but Dr. Missimer testified that, in the unlikely event that somewhat more acidic water were injected into the Boulder Zone, the predominantly dolomitic Middle Floridan Confining Unit and Boulder Zone would withstand acidity better than would the limestone that prevails at subsurface higher elevations. Nor is the problem here an omission of the prohibition against injecting hazardous waste. Unlike the situation with the maximum pumping rate, the Permit addresses hazardous waste and flatly prohibits its injection into the injection wells. The problem is whether this prohibition, even if coupled with Applicant's succinct description in Attachment G of its approach to hazardous-waste determinations, provides reasonable assurance that this provision of the Permit will work. If reasonable assurance were satisfied by a mere restatement of the requirements of law, this Permit could have been shortened to: "Applicant may inject wastewater pursuant to law." Or, perhaps a little more generously, the Permit could be reduced to a minor restatement of Specific Condition 1.d: "Pursuant to law, Applicant may inject wastewater, but not so that it causes or allows the movement of fluid into an USDW." Essentially, the Permit addresses hazardous wastes by prohibiting them. The lone provision in the Permit concerning hazardous waste is Specific Condition 6.a.9, which states bravely: "The injectate shall be non-hazardous in nature at all times " The incorporation of Attachment G into the Permit would provide reasonable assurance of actual testing of the chemical cleaning residue and probably of the cooling system water and leak-tracing dyes, which is based on vendors' representations, but would not provide any assurance as to the other wastestreams. Process knowledge of sanitary wastewater treatment, if based on Applicant's knowledge, means little given the fact that Applicant is a power company. For the remaining wastestreams, unidentified analysis of undisclosed "historical data" means nothing and, thus, provides no assurance whatsoever. For all of these wastestreams, including the chemical cleaning wastestream, reasonable assurance requires a plan for periodically obtaining reliable data and conducting valid analysis, or obtaining such data and analysis from other parties such as reliable vendors or governmental agencies; the implementation of such a plan; and the documentation of the implementation, including the recordation of the data sources relied on, the analytic processes undertaken and by whom, the resulting determination as to whether a discrete wastestream is a hazardous waste, and the manner of disposition of any such hazardous waste. The procedures described in the preceding paragraph provide reasonable assurance because, although consistent with DEP's evident reliance on permittees to self-police as to hazardous wastes, they supply reasonably broad guidelines for how permittees are to discharge their hazardous-waste responsibilities, thus improving the likelihood of effective compliance, and some reasonable basis for enforcement, in the event of noncompliance. At present, the Permit's treatment of hazardous wastes leaves Applicant largely on its own and little, if any, opportunity for effective monitoring and enforcement by DEP, given that the wastewater, once injected, is 3000 feet under the surface of the earth where, under the facts of these cases, it will remain for geologic time. For several reasons, the deficiencies in the Permit concerning hazardous waste appear more consequential than they are in reality, based on the present record. First, the source water for the WCEC is not likely to produce hazardous waste. The Upper Floridan Aquifer contains only one substance that is on the hazardous waste list, as it is presently constituted, and the substance does not approach the concentration required for listing. The L-10/L-12 canal contains several listed substances, but, as Dr. Missimer pointed out, the concentrations, even after five cycles through the plant, are several orders of magnitude below the concentrations that are necessary for listing. Although the composition of the canal water, which drains Lake Okeechobee, is far more variable than the composition of the Upper Floridan Aquifer, neither source presents a real risk of introducing hazardous waste into the wastestream to be injected into the Boulder Zone. Additionally, the Permit already requires extensive water-quality testing of the wastewater, although not as extensive as would be necessary to rule out, on the basis of laboratory testing alone, the presence of any hazardous waste in the wastewater. Second, Applicant does have considerable knowledge, if not of sanitary wastewater treatment processes, of the process involved in the production of energy. For those relatively few components that come into direct contact with cooling or process water, reasonable assurance as to hazardous wastes does not require much from Applicant. Initially and when introducing new equipment that comes into contact with the wastestream, Applicant may easily document, based on vendors' representations, that the substances contributed from these components into the wastewater are not listed or, if listed, are not contributed at rates approaching the listed concentrations. For wastewater from the package plant, Applicant may undertake the same process, again relying on the expertise of vendors or other parties, unless Applicant can demonstrate expertise in sanitary wastewater that it has not demonstrated in this record. Third, the volume of water to be disposed of daily is vast. Aside from the depth of the wells and the difficult-to- conceive vastness of the Lower Florida Aquifer, the fact that best describes the scale of this project is the vertical height of the injecting zone, which will be at least 200 feet high, or the height of a 20-story building. From this scale, one can infer the scale of the amount of wastewater that Applicant will be disposing of daily. This is not to suggest that a little hazardous waste is not especially important given the vastness of scale of this project. Rather, it is to acknowledge that it is extremely unlikely that these high volumes of wastewater, at the moment of entry into the injection well, would ever contain a hazardous waste due to the fact that the characteristic wastes, listed for toxicity, are expressed in concentrations, although the wastes may reach listed concentrations at early points, such as in the boiler immediately after chemical cleaning or in the package plant. For these three reasons, the failure of the Permit to provide reasonable assurance as to hazardous wastes is a minor deficiency, more of theoretical than actual importance, and is easily remedied by a few Permit additions, whose phrasing is properly left to the discretion of DEP.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order issuing Permit No. 247895-007-UC or issuing Permit No. 247895-007-UC with the recommended revisions. DONE AND ENTERED this 3rd day of March, 2008, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 2008.
The Issue Did the site in question fail to meet monitoring and retrofitting requirements within the schedules established under Chapter 17-61, Florida Administrative Code, and thereby not be eligible for the Early Detection Incentive Program?
Findings Of Fact The State Underground Petroleum Environmental Response (SUPER) Act of 1986 was enacted as Chapter 86-159, Laws of Florida, and codified primarily in Section 376. 071, Florida Statutes. It provides for the expeditious cleanup of property contaminated as the result of storage of petroleum or petroleum product. As part of the SUPER Act, the legislature created the program which is of direct relevance in this litigation. The EDI Program, Section 376.3071(9), Florida Statutes,, provides for state cleanups of sites contaminated as a result of a discharge from a petroleum storage system. Petitioner now owns and operates a facility at Route 1, Box 167 Jay, Florida. (Hearing Officer's Exhibit 2). The facility contains two underground petroleum storage tanks which were installed on or before 1970. (T8, 9). Monitoring wells were installed for the tanks in December, 1988. (T7). Monitoring wells are pipes which are installed in the ground around a tank excavation to allow for detection of leaks from the tanks. (T8).
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the site owned by Petitioner be determined to be ineligible for the Early Detection Incentive Program, pursuant to Section 376.3071(9), Florida Statutes. DONE AND ORDERED this 9th day of January, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto 1230 Apalachee Parkway Tallahassee, FL 32399-15SO (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1990. COPIES FURNISHED: E. Gary Early, Esq. Assistant General Counsel Florida Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Mr. Thomas L. MCNAUGHTON MCNAUGHTON's Store Route 1 Jay, FL 32565 Mr. Dale H. Twachtmann Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
